Bill Text: CA SB544 | 2011-2012 | Regular Session | Amended
Bill Title: Professions and vocations: regulatory boards.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-01-31 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB544 Detail]
Download: California-2011-SB544-Amended.html
BILL NUMBER: SB 544 AMENDED
BILL TEXT
AMENDED IN SENATE JANUARY 4, 2012
AMENDED IN SENATE APRIL 14, 2011
AMENDED IN SENATE MARCH 21, 2011
INTRODUCED BY Senator Price
FEBRUARY 17, 2011
An act to amend Sections 116, 155, 159.5, 726, 802.1,
803, 803.5, 803.6, 822, 1695,
2246, 2360, 2662, 2770, 2960.1, 3534, 4860,
4982.26, and 4992.33 of, and to add Sections 40, 42,
44, 505, 734, 735, 736, 737, 803.7,
803.8, 857, 1688, 1688.1, 1688.2, 1688.3, 1688.4,
1688.5, 1688.6, 1707, 1947.1, 1947.2, 1947.3, 1947.4,
1947.5, 1947.6, 1947.7, 1947.8, 1954.5, 2320,
2458.1, 2533.5, 2533.6, 2533.7, 2533.8, 2533.9,
2533.10, 2533.11, 2533.12, 2533.13, 2533.14,
2538.52.5, 2570.38, 2570.39, 2570.40, 2570.41,
2570.42, 2570.43, 2570.44, 2570.45, 2570.46, 2570.47,
2570.48, 2661.8, 2661.9, 2661.10, 2661.11, 2661.12,
2661.13, 2661.14, 2661.15, 2661.16, 2661.17, 2673,
2766, 2766.1, 2766.2, 2766.3, 2766.4, 2766.5, 2766.6,
2766.7, 2766.8, 2799.2, 2879.1, 2879.2, 2879.3,
2879.4, 2879.5, 2879.6, 2879.7, 2879.8, 2879.10,
2886.5, 2969.1, 2969.2, 2969.3, 2969.4, 2972,
3112, 3112.1, 3112.2, 3112.3, 3112.4, 3112.5, 3112.6,
3112.7, 3112.8, 3112.9, 3123, 3405, 3405.1,
3405.2, 3405.3, 3405.4, 3405.5, 3405.6, 3405.7,
3405.8, 3405.9, 3531.1, 3531.2, 3531.3, 3531.4, 3531.5,
3531.6, 3531.7, 3531.8, 3531.9, 3531.10, 3533.5,
3664.5, 3665, 3665.1, 3665.2, 3665.3, 3665.4,
3665.5, 3665.6, 3665.7, 3665.8, 3665.9, 3769.4, 3769.5,
3769.6, 3769.7, 3769.8, 3769.9, 3769.10,
3769.11, 4316, 4316.1, 4316.2, 4316.3, 4316.4,
4316.5, 4316.6, 4344, 4375, 4526, 4526.1,
4526.2, 4526.3, 4526.4, 4526.5, 4526.6, 4526.8,
4526.9, 4543.5, 4888, 4888.1, 4888.2, 4888.3,
4888.4, 4888.5, 4888.6, 4888.7, 4962, 4964.1,
4964.2, 4964.3, 4964.4, 4964.55, 4964.6, 4964.7,
4964.8, 4964.9, 4964.10, 4990.43, 4990.44, 4990.45,
4990.46, 4990.47, 4990.48, 4990.49, 4990.50,
4990.51, 4990.52, and 4990.53 to, to add Article 16
(commencing with Section 880) to Chapter 1 of Division 2 of, and to
repeal Sections 2608.5 and 2660.5 of, the Business and
Professions Code, and to add Section 12529.8 to the Government Code,
relating to professions and vocations.
LEGISLATIVE COUNSEL'S DIGEST
SB 544, as amended, Price. Professions and vocations: regulatory
boards.
(1) Existing law provides for the licensure and regulation of
profession and vocation licensees by various boards within the
Department of Consumer Affairs. Within the department, there are
healing arts boards and nonhealing arts boards. The department is
under the control of the Director of Consumer Affairs.
This bill would require cooperation between state
agencies and all boards within the department when investigating a
licensee, and would require a state agency to provide to the board
all licensee records in the custody of the state agency. The bill
would require all local and state law enforcement agencies, state and
local governments, state agencies, licensed health care facilities,
and any employers of any licensee to provide licensee records to any
board within the department upon request by that board, and would
make an additional requirement specific to the Department of Justice.
By imposing additional duties on local agencies, the bill would
impose a state-mandated local program. the Department
of Justice to serve or submit to a healing arts board for service
accusations and default decisions within a specified timeframe and
would also require the Department of Justice to set a
hearing within a specified timeframe upon receiving a notice of
defense , except as specified .
The bill would prohibit a licensee regulated by a board within the
department from including certain provisions in an agreement to
settle a civil litigation action arising from his or her practice, as
specified.
(2) Existing law authorizes the director to audit and review,
among other things, inquiries and complaints regarding licensees,
dismissals of disciplinary cases, and discipline short of formal
accusation by the Medical Board of California and the California
Board of Podiatric Medicine.
This bill would additionally authorize the director or his or her
designee to audit and review the aforementioned activities by any of
the healing arts boards.
Existing law authorizes the director to employ investigators,
inspectors, and deputies as are necessary to investigate and
prosecute all violations of any law, the enforcement of which is
charged to the department, or to any board in the department.
Inspectors used by the boards are not required to be employees of the
Division of Investigation, but may be employees of, or under
contract to, the boards.
This bill would authorize healing arts boards to employ
investigators who are not employees of the Division of Investigation,
and would authorize those boards to contract for investigative
services provided by the Department of Justice. The bill would also
establish within the Division of Investigation the Health Quality
Enforcement Unit to provide investigative services for healing arts
proceedings.
The bill would require all healing arts boards within the
department to report annually, by October 1, to the department and
the Legislature certain information, including, but not limited to,
the total number of complaints closed or resolved without discipline,
the total number of complaints and reports referred for formal
investigation, and the total number of accusations filed and the
final disposition of accusations through the board and court review,
respectively.
The bill would also provide that it is an act of unprofessional
conduct for any licensee of a healing arts board to fail to furnish
information in a timely manner to the board or the board's
investigators, or to fail to cooperate and participate in any
disciplinary investigation pending against him or her, except as
specified.
Existing law requires a physician and surgeon, osteopathic
physician and surgeon, and a doctor of podiatric medicine to report
to his or her respective board when there is an indictment or
information charging a felony against the licensee or he or she has
been convicted of a felony or misdemeanor.
This bill would expand that requirement to a licensee of any
healing arts board, as specified, and would further require a report
when disciplinary action is taken against a licensee by another
healing arts board or by a healing arts board of another state or an
agency of the federal government.
Existing law requires the district attorney, city attorney, and
other prosecuting agencies to notify the Medical Board of California,
the Osteopathic Medical Board of California, the California Board of
Podiatric Medicine, the State Board of Chiropractic Examiners, and
other allied health boards and the court clerk if felony charges have
been filed against one of the board's licensees. Existing law also
requires, within 10 days after a court judgment, the clerk of the
court to report to the appropriate board when a licentiate has
committed a crime or is liable for any death or personal injury
resulting in a specified judgment. Existing law also requires the
clerk of the court to transmit to certain boards specified felony
preliminary transcript hearings concerning a defendant licensee.
The bill would instead make those provisions applicable to all
healing arts boards. By imposing additional duties on these local
agencies, the bill would impose a state-mandated local program.
The bill would require a healing arts board, the State Board of
Chiropractic Examiners, and the Osteopathic Medical Board of
California to query the federal National Practitioner Data Bank prior
to, among other things, granting a license to an applicant who is
currently residing in another state or granting a petition for
reinstatement of a revoked or surrendered license.
This bill would make it a crime to engage in the practice of
certain healing arts without a current and valid license,
except as specified; or to fraudulently buy, sell,
or obtain such a license to practice certain
healing arts. By creating new crimes, the bill would impose a
state-mandated local program.
(3) Under existing law, healing arts licensees are regulated by
various healing arts boards within the department. These boards are
authorized to issue, deny, suspend, and revoke licenses based on
various grounds and to take disciplinary action against a licensee
for the failure to comply with their laws and regulations. Existing
law requires or authorizes a board to appoint an executive officer
to, among other things, perform duties delegated by the board.
This bill would authorize a healing arts board to delegate to its
executive officer, where an administrative action has been filed by
the board to revoke the license of a licensee and the licensee has
failed to file a notice of defense or appear at the hearing, the
authority to adopt a proposed default decision. The bill would also
authorize a healing arts board to enter into a settlement with a
licensee or applicant in lieu of the issuance of an accusation or
statement of issues against the licensee or applicant.
The bill would also provide that the license of a licensee of a
healing arts board shall be suspended if the licensee is incarcerated
after the conviction of a felony and would require the board to
notify the licensee of the suspension and of his or her right to a
specified hearing. The bill would specify that no hearing is
required, however, if the conviction was for a violation of federal
law or state law for the use of dangerous drugs or controlled
substances or specified sex offenses; a violation for the use of
dangerous drugs or controlled substances would also constitute
unprofessional conduct and a crime, thereby imposing a state-mandated
local program.
The bill would prohibit the issuance of a healing arts
license to any person who is a registered sex offender, and would
provide for the revocation of a license upon the conviction
of certain sex offenses, as defined. The bill would provide that the
commission of, and conviction for, any act of sexual abuse,
misconduct, or attempted sexual misconduct, whether or not with a
patient, or conviction of a felony requiring registration as a sex
offender, be considered a crime substantially related to the
qualifications, functions, or duties of a healing arts licensee.
The bill would impose requirements on boards with respect to
individuals required to register as a sex offender.
This bill would authorize the Attorney General and his or her
investigative agents and certain healing arts boards to inquire into
any alleged violation of the laws under the boards' jurisdiction and
to inspect documents subject to specified procedures. The bill would
make the licensees of those healing arts boards or a health care
facility that fails to comply with a patient's medical record
request, as specified, within 15 days, or who fails or refuses to
comply with a court order mandating release of records, subject to
civil and criminal penalties, as specified. By creating a new crime,
the bill would impose a state-mandated local program.
The bill would require the employer of certain health care
licensees to report to the appropriate board within a specified
timeframe information relating to a health care licensee who is
suspended or terminated for cause or who resigns. The bill would
require a board to investigate these reports, including the
inspection and copying of certain documents relating to that
suspension, termination, or resignation.
The bill would require specified healing arts boards, on or after
July 1, 2013 2014 , to post on their
Internet Web sites specified information in their possession,
custody, or control regarding their licensees and their license
status, prior discipline, and convictions.
The bill would authorize a certain
healing arts board boards to
automatically suspend the license of any licensee who also has an
out-of-state license or a license issued by an agency of the federal
government that is suspended or revoked, except as specified.
(4) The bill would declare the intent of the Legislature that the
Bureau of State Audits conduct a specified review of the
Pharmacists Recovery Program by January 1, 2013
diversion programs administered by the Dental Board of California,
the Osteopathic Medical Board of California, the Physical Therapy
Board of California, the Board of Registered Nursing, the Physician
Assistant Committee, and the Veterinary Medical Board of California
by January 1, 2014 .
(5) Existing law establishes in the Department of Justice the
Health Quality Enforcement Section, whose primary responsibility is
to investigate and prosecute proceedings against licensees and
applicants within the jurisdiction of the Medical Board of California
and any committee of the board, the California Board of Podiatric
Medicine, and the Board of Psychology.
This bill would authorize a healing arts board to utilize the
services of the Health Quality Enforcement Section or licensing
section. If utilized, the bill would require the Attorney General to
assign attorneys employed by the office of the Attorney General to
work on location at the licensing unit of the Division of
Investigation of the Department of Consumer Affairs, as specified.
(6) The bill would delete, revise and recast various provisions of
the Physical Therapy Practice Act and would make other conforming
changes.
(7) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known and may be cited as the
Consumer Health Protection Enforcement Act.
SEC. 2. (a) The Legislature finds and declares the following:
(1) In recent years, it has been reported that many of the healing
arts boards within the Department of Consumer Affairs take, on
average, more than three years to investigate and prosecute
violations of law, a timeframe that does not adequately protect
consumers.
(2) The excessive amount of time that it takes healing arts boards
to investigate and prosecute licensed professionals who have
violated the law has been caused, in part, by legal and procedural
impediments to the enforcement programs.
(3) Both consumers and licensees have an interest in the quick
resolution of complaints and disciplinary actions. Consumers need
prompt action against licensees who do not comply with professional
standards, and licensees have an interest in timely review of
consumer complaints to keep the trust of their patients.
(b) It is the intent of the Legislature that the changes made by
this act will improve efficiency and increase accountability within
the healing arts boards of the Department of Consumer Affairs, and
will remain consistent with the long-held paramount goal of consumer
protection.
(c) It is further the intent of the Legislature that the changes
made by this act will provide healing arts boards within the
Department of Consumer Affairs with the regulatory tools and
authorities necessary to reduce the average timeframe for
investigating and prosecuting violations of law by healing arts
practitioners to between 12 and 18 months.
SEC. 3. Section 40 is added to the Business and
Professions Code, to read:
40. (a) Notwithstanding any other provision of law, for purposes
of a board investigation, a state agency shall, upon receiving a
request in writing from a board for records about a particular
licensee, immediately provide to the board all records about a
licensee in the custody of the state agency, including, but not
limited to, confidential records, medical records, and records
related to closed or open investigations.
(b) If a state agency has knowledge that a person it is
investigating is licensed by a board, the state agency shall notify
the board that it is conducting an investigation against one of its
licentiates. The notification of investigation to the board shall
include the name, address, and, if known, the professional license
type and license number of the person being investigated and the name
and address or telephone number of a person who can be contacted for
further information about the investigation. The state agency shall
cooperate with the board in providing any requested information.
(c) A board shall maintain the confidentiality of any personally
identifying information contained in the records maintained pursuant
to this section, and shall not share, sell, or transfer the
information to any third party unless it is otherwise authorized by
federal or state law.
SEC. 4. Section 42 is added to the Business and
Professions Code, to read:
42. Notwithstanding any other provision of law, all local and
state law enforcement agencies, state and local governments, state
agencies, licensed health care facilities, and employers of a
licensee of a board shall provide records to the board upon request
prior to receiving payment from the board for the cost of providing
the records. These records include, but are not limited to,
confidential records, medical records, and records related to closed
or open investigations.
SEC. 5. SEC. 3. Section 44 is added
to the Business and Professions Code, to read:
44. (a) A licensee of a board shall not include or permit to be
included any of the following provisions in an agreement to settle a
civil litigation action filed by a consumer arising from the licensee'
s practice, whether the agreement is made before or after the filing
of an action:
(1) A provision that prohibits another party to the dispute from
contacting or cooperating with the board.
(2) A provision that prohibits another party to the dispute from
filing a complaint with the board.
(3) A provision that requires another party to the dispute to
withdraw a complaint he or she has filed with the board.
(b) A provision described in subdivision (a) is void as against
public policy.
(c) A violation of this section constitutes unprofessional conduct
and may subject the licensee to disciplinary action.
(d) If a board complies with Section 2220.7, that board shall not
be subject to the requirements of this section.
SEC. 6. SEC. 4. Section 116 of the
Business and Professions Code is amended to read:
116. (a) The director or his or her designee 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 of the healing arts boards described in Division 2
(commencing with Section 500). The director may make recommendations
for changes to the disciplinary system to the appropriate board, the
Legislature, or both, for their consideration.
(b) The director shall report to the Chairpersons of the Senate
Committee on Business, Professions and Economic Development and the
Assembly Committee on Health annually regarding his or her findings
from any audit, review, or monitoring and evaluation conducted
pursuant to this section.
SEC. 7. SEC. 5. Section 155 of the
Business and Professions Code is amended to read:
155. (a) In accordance with Section 159.5, the director may
employ such investigators, inspectors, and deputies as are necessary
to properly investigate and prosecute all violations of any law, the
enforcement of which is charged to the department or to any board,
agency, or commission in the department.
(b) It is the intent of the Legislature that inspectors used by
boards, bureaus, or commissions in the department shall not be
required to be employees of the Division of Investigation, but may
either be employees of, or under contract to, the boards, bureaus, or
commissions. Contracts for services shall be consistent with Article
4.5 (commencing with Section 19130) of Chapter 6 of Part 2 of
Division 5 of Title 2 of the Government Code. All civil service
employees currently employed as inspectors whose functions are
transferred as a result of this section shall retain their positions,
status, and rights in accordance with Section 19994.10 of the
Government Code and the State Civil Service Act (Part 2 (commencing
with Section 18500) of Division 5 of Title 2 of the Government Code).
(c) Investigators used by any healing arts board, as described in
Division 2 (commencing with Section 500), shall not be required to be
employees of the Division of Investigation and a healing arts board
may contract for investigative services provided by the Department of
Justice.
(d) Nothing in this section limits the authority of, or prohibits,
investigators in the Division of Investigation in the conduct of
inspections or investigations of any licensee, or in the conduct of
investigations of any officer or employee of a board or the
department at the specific request of the director or his or her
designee.
SEC. 8. SEC. 6. Section 159.5 of the
Business and Professions Code is amended to read:
159.5. There is in the department the Division of Investigation.
The division is in the charge of a person with the title of chief of
the division. There is in the division the Health Quality Enforcement
Unit. The primary responsibility of the unit is to investigate
complaints against licensees and applicants within the jurisdiction
of the healing arts boards described in Section 720.
Except as provided in Section 16 of Chapter 1394 of the Statutes
of 1970, all positions for the personnel necessary to provide
investigative services, as specified in Section 160 of this code and
in subdivision (b) of Section 830.3 of the Penal Code, shall be in
the division and the personnel shall be appointed by the director.
SEC. 9. SEC. 7. Section 505 is added
to the Business and Professions Code, to read:
505. (a) Each healing arts board shall report annually to the
department and the Legislature, not later than October 1 of each
year, the following information:
(1) The total number of complaints closed or resolved without
discipline, prior to accusation.
(2) The total number of complaints and reports referred for formal
investigation.
(3) The total number of accusations filed and the final
disposition of accusations through the board and court review,
respectively.
(4) The total number of citations issued, with fines and without
fines, and the number of public letters of reprimand, letters of
admonishment, or other similar action issued, if applicable.
(5) The total number of final licensee disciplinary actions taken,
by category.
(6) The total number of cases in process for more than 6 months,
more than 12 months, more than 18 months, and more than 24 months,
from receipt of a complaint by the board.
(7) The average time in processing complaints, from original
receipt of the complaint by the board, for all cases, at each stage
of the disciplinary process and court review, respectively.
(8) The total number of licensees in diversion or on probation for
alcohol or drug abuse, and the number of licensees successfully
completing diversion programs or probation, and failing to do so,
respectively.
(9) The total number of probation violation reports and probation
revocation filings, and their dispositions.
(10) The total number of petitions for reinstatement, and their
dispositions.
(b) "Action," for purposes of this section, includes proceedings
brought by, or on behalf of, the healing arts board against licensees
for unprofessional conduct that have not been finally adjudicated,
as well as disciplinary actions taken against licensees.
(c) A board that complies with Section 2313 shall not be subject
to the requirements of this section.
(d) A report to be submitted pursuant to this section shall be
submitted in compliance with Section 9795 of the Government Code.
(e) This section shall become inoperative on October 1, 2016.
SEC. 10. SEC. 8. Section 726 of the
Business and Professions Code is amended to read:
726. (a) The commission of any act of sexual abuse, misconduct,
or relations with a patient, client, or customer constitutes
unprofessional conduct and grounds for disciplinary action for any
person licensed under this division and under any initiative act
referred to in this division.
(b) For purposes of Division 1.5 (commencing with Section 475),
the commission of, and conviction for, any act of sexual abuse,
sexual misconduct, or attempted sexual misconduct, whether or not
with a patient, or conviction of a felony requiring registration
pursuant to Section 290 of the Penal Code, shall be considered a
crime substantially related to the qualifications, functions, or
duties of a licensee of a healing arts board described in this
division.
(c) This section shall not apply to sexual contact between a
licensee and his or her spouse or person in an equivalent domestic
relationship when that licensee provides medical treatment, other
than psychotherapeutic treatment, to his or her spouse or person in
an equivalent domestic relationship.
SEC. 11. SEC. 9. Section 734 is
added to the Business and Professions Code, to read:
734. (a) The conviction of a charge of violating any federal
statute or regulation or any statute or regulation of this state
regulating dangerous drugs or controlled substances constitutes
unprofessional conduct. The record of the conviction is conclusive
evidence of the unprofessional conduct. A plea or verdict of guilty
or a conviction following a plea of nolo contendere is deemed to be a
conviction within the meaning of this section.
(b) Discipline may be ordered against a licensee in accordance
with the laws and regulations of the healing arts board or the board
may order the denial of the license when the time for appeal has
elapsed, or the judgment of conviction has been affirmed on appeal,
or when an order granting probation is made suspending the imposition
of sentence, irrespective of a subsequent order under the provisions
of Section 1203.4 of the Penal Code allowing that person to withdraw
his or her plea of guilty and to enter a plea of not guilty, or
setting aside the verdict of guilty, or dismissing the accusation,
complaint, information, or indictment.
SEC. 12. SEC. 10. Section 735 is
added to the Business and Professions Code, to read:
735. A violation of any federal statute or federal regulation or
any of the statutes or regulations of this state regulating dangerous
drugs or controlled substances constitutes unprofessional conduct.
SEC. 13. Section 736 is added to the Business
and Professions Code, to read:
736. (a) The use or prescribing for or administering to himself
or herself of any controlled substance; or the use of any of the
dangerous drugs specified in Section 4022, or of alcoholic beverages,
to the extent or in such a manner as to be dangerous or injurious to
the licensee, or to any other person or to the public, or to the
extent that the use impairs the ability of the licensee to practice
safely; or conviction of any misdemeanor or felony involving the use,
consumption, or self-administration of any of the substances
referred to in this section, or conviction of any combination
thereof, constitutes unprofessional conduct. The record of the
conviction is conclusive evidence of the unprofessional conduct.
(b) A plea or verdict of guilty or a conviction following a plea
of nolo contendere is deemed to be a conviction within the meaning of
this section. Discipline may be ordered against a licensee in
accordance with the laws and regulations of the healing arts board or
the board may order the denial of the license when the time for
appeal has elapsed or the judgment of conviction has been affirmed on
appeal or when an order granting probation is made suspending
imposition of sentence, irrespective of a subsequent order under the
provisions of Section 1203.4 of the Penal Code allowing that person
to withdraw his or her plea of guilty and to enter a plea of not
guilty, or setting aside the verdict of guilty, or dismissing the
accusation, complaint, information, or indictment.
(c) A violation of subdivision (a) is a misdemeanor, and upon
conviction shall be punished by a fine of up to ten thousand dollars
($10,000), or by imprisonment in the county jail of up to six months,
or by both that fine and imprisonment.
SEC. 14. SEC. 11. Section 737 is
added to the Business and Professions Code, to read:
737. It shall be unprofessional conduct for any licensee of a
healing arts board to fail to comply with the following:
(a) Furnish information in a timely manner to the healing arts
board or the board's investigators or representatives if requested by
the board.
(b) Cooperate and participate in any investigation or other
regulatory or disciplinary proceeding pending against the licensee.
However, this subdivision shall not be construed to deprive a
licensee of any privilege guaranteed by the Fifth Amendment to the
Constitution of the United States, or any other constitutional or
statutory privileges. This subdivision shall not be construed to
require a licensee to cooperate with a request that requires him or
her to waive any constitutional or statutory privilege or to comply
with a request for information or other matters within an
unreasonable period of time in light of the time constraints of the
licensee's practice. Any exercise by a licensee of any constitutional
or statutory privilege shall not be used against the licensee in a
regulatory or disciplinary proceeding against the licensee.
SEC. 15. Section 802.1 of the Business and
Professions Code is amended to read:
802.1. (a) (1) A licensee of a healing arts board described in
this division shall report any of the following to the entity that
issued his or her license:
(A) The bringing of an indictment or information charging a felony
against the licensee.
(B) The conviction of the licensee, including any verdict of
guilty, or plea of guilty or no contest, of any felony or
misdemeanor.
(C) Any disciplinary action taken by another licensing entity or
authority of this state or of another state or an agency of the
federal government.
(2) The report required by this subdivision shall be made in
writing within 30 days of the date of the bringing of the indictment
or the charging of a felony, or of the arrest, conviction, or
disciplinary action.
(b) Failure to make a report required by this section shall be a
public offense punishable by a fine not to exceed five thousand
dollars ($5,000) and shall constitute unprofessional conduct.
SEC. 16. SEC. 12. Section 803 of the
Business and Professions Code is amended to read:
803. (a) Except as provided in subdivision (b), within 10 days
after a judgment by a court of this state that a person who holds a
license, certificate, or other similar authority from a healing arts
board described in this division, has committed a crime, or is liable
for any death or personal injury resulting in a judgment for an
amount in excess of thirty thousand dollars ($30,000) caused by his
or her negligence, error or omission in practice, or his or her
rendering unauthorized professional services, the clerk of the court
that rendered the judgment shall report that fact to the agency that
issued the license, certificate, or other similar authority.
(b) For purposes of a physician and surgeon, osteopathic physician
and surgeon, or doctor of podiatric medicine, who is liable for any
death or personal injury resulting in a judgment of any amount caused
by his or her negligence, error or omission in practice, or his or
her rendering unauthorized professional services, the clerk of the
court that rendered the judgment shall report that fact to the board
that issued the license.
SEC. 17. SEC. 13. Section 803.5 of
the Business and Professions Code is amended to read:
803.5. (a) The district attorney, city attorney, or other
prosecuting agency shall notify the appropriate healing arts board
described in this division and the clerk of the court in which the
charges have been filed, of any filings against a licensee of that
board charging a felony immediately upon obtaining information that
the defendant is a licensee of the board. The notice shall identify
the licensee and describe the crimes charged and the facts alleged.
The prosecuting agency shall also notify the clerk of the court in
which the action is pending that the defendant is a licensee, and the
clerk shall record prominently in the file that the defendant holds
a license from one of the boards described above.
(b) The clerk of the court in which a licensee of one of the
boards is convicted of a crime shall, within 48 hours after the
conviction, transmit a certified copy of the record of conviction to
the applicable board.
SEC. 18. SEC. 14. Section 803.6 of
the Business and Professions Code is amended to read:
803.6. (a) The clerk of the court shall transmit any felony
preliminary hearing transcript concerning a defendant licensee to the
appropriate healing arts board described in this division where the
total length of the transcript is under 800 pages and shall notify
the appropriate board of any proceeding where the transcript exceeds
that length.
(b) In any case where a probation report on a licensee is prepared
for a court pursuant to Section 1203 of the Penal Code, a copy of
that report shall be transmitted by the probation officer to the
appropriate healing arts board.
SEC. 19. SEC. 15. Section 803.7 is
added to the Business and Professions Code, to read:
803.7. The Department of Justice shall ensure that subsequent
reports and subsequent disposition information authorized to be
issued to any board identified in Section 101 are submitted to that
board within 30 days from notification of subsequent arrests,
convictions, or other updates.
SEC. 20. SEC. 16. Section 803.8 is
added to the Business and Professions Code, to read:
803.8. (a) The office of the Attorney General shall serve, or
submit to a healing arts board for service, an accusation within 60
calendar days of receipt from the healing arts board.
(b) The office of the Attorney General shall serve, or submit to a
healing arts board for service, a default decision within five days
following the time period allowed for the filing of a notice of
defense.
(c) The office of the Attorney General shall set a hearing date
within three days of receiving a notice of defense, unless the
healing arts board gives the office of the Attorney General
instruction otherwise.
SEC. 21. Section 822 of the Business and
Professions Code is amended to read:
822. If a licensing agency determines that its licentiate's
ability to practice his or her profession safely is impaired because
the licentiate is mentally ill, or physically ill affecting
competency, the licensing agency may take action by any one of the
following methods:
(a) Revoking the licentiate's certificate or license.
(b) Suspending the licentiate's right to practice.
(c) Placing the licentiate on probation.
(d) Taking such other action in relation to the licentiate as the
licensing agency in its discretion deems proper, including issuing a
limited or restricted license.
The licensing agency shall not reinstate a revoked or suspended
certificate or license or lift any restrictions or limitations until
it has received competent evidence of the absence or control of the
condition which caused its action and until it is satisfied that with
due regard for the public health and safety the person's right to
practice his or her profession may be safely reinstated.
SEC. 22. SEC. 17. Section 857 is
added to the Business and Professions Code, to read:
857. (a) Each healing arts board, the State Board of Chiropractic
Examiners, and the Osteopathic Medical Board of California shall
query the federal National Practitioner Data Bank prior to any of the
following:
(1) Granting a license to an applicant who is currently residing
in another state.
(2) Granting a license to an applicant who is currently or has
ever been licensed as a health care practitioner in California or
another state.
(3) Granting a petition for reinstatement of a revoked or
surrendered license.
(b) Notwithstanding subdivision (a), a healing arts board, the
State Board of Chiropractic Examiners, and the Osteopathic Medical
Board of California may query the federal National Practitioner Data
Bank prior to issuing any license.
(c) A healing arts board shall charge a fee to cover the actual
cost to conduct the queries described in this section.
SEC. 23. Article 16 (commencing with Section
880) is added to Chapter 1 of Division 2 of the Business and
Professions Code, to read:
Article 16. Unlicensed Practice
880. (a) (1) It is a public offense, punishable by a fine not to
exceed one hundred thousand dollars ($100,000), by imprisonment in a
county jail not to exceed one year, or by both that fine and
imprisonment, for:
(A) Any person who does not hold a current and valid license to
practice a healing art under this division to engage in that
practice.
(B) Any person who fraudulently buys, sells, or obtains a license
to practice any healing art in this division or to violate any
provision of this division.
(2) Subparagraph (A) of paragraph (1) shall not apply to any
person who is already being charged with a crime under the specific
healing arts licensing provisions for which he or she engaged in
unauthorized practice.
(b) Notwithstanding any other provision of law, any person who is
licensed under this division, and who supervises the practice of a
healing art by any person who does not hold a current and valid
license to practice that healing art under this division, is guilty
of a public crime, punishable by a fine not to exceed one hundred
thousand dollars ($100,000), by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment.
SEC. 24. SEC. 18. Section 1688 is
added to the Business and Professions Code, to read:
1688. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 25. SEC. 19. Section 1688.1 is
added to the Business and Professions Code, to read:
1688.1. (a) Notwithstanding Section
11415.60 of the Government Code, the board may enter into a
settlement with a licensee or applicant in lieu of the issuance of an
accusation or statement of issues against that licensee or
applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 26. SEC. 20. Section 1688.2 is
added to the Business and Professions Code, to read:
1688.2. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The board shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The board shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the issue
of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the board
shall suspend the license until the time for appeal has elapsed, if
no appeal has been taken, or until the judgment of conviction has
been affirmed on appeal or has otherwise become final, and until
further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the board may decline to impose or may set
aside the suspension when it appears to be in the interest of justice
to do so, with due regard to maintaining the integrity of, and
confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the board when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the board from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 27. SEC. 21. Section 1688.3 is
added to the Business and Professions Code, to read:
1688.3. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense" shall mean any of the following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 28. Section 1688.4 is added to the
Business and Professions Code, to read:
1688.4. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the board shall
be subject to the following requirements:
(1) The board shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the board
shall promptly revoke the license of the individual in accordance
with the procedures set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
board shall not stay the revocation and place the license on
probation.
(3) The board shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 29. SEC. 22. Section 1688.5 is
added to the Business and Professions Code, to read:
1688.5. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information, including the name and license
number, in its possession, custody, or control regarding every
licensee for which whom the board
licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the board.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 30. SEC. 23. Section 1688.6 is
added to the Business and Professions Code, to read:
1688.6. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The board shall notify the
licensee of the license suspension and of his or her right to have
the issue of penalty heard as provided in this section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 24. Section 1695 of the Business
and Professions Code is amended to read:
1695. (a) It is the intent of the
Legislature that the Board of Dental
Examiners Board of California seek ways and
means to identify and rehabilitate licentiates whose competency may
be impaired due to abuse of dangerous drugs or alcohol, so that
licentiates so afflicted may be treated and returned to the practice
of dentistry in a manner which will not endanger the public health
and safety. It is also the intent of the Legislature that the
Board of Dental Examiners Dental Board
of California shall implement this legislation in part by
establishing a diversion program as a voluntary alternative approach
to traditional disciplinary actions.
(b) It is the intent of the Legislature, through a request in 2013
from the Joint Legislative Audit Committee, that the Bureau of State
Audits conduct a thorough performance audit of the board's diversion
program to evaluate the effectiveness and efficiency of the program,
and make recommendations regarding the continuation of the program
and any changes or reforms required to ensure that licensees
participating in the program are appropriately monitored and that the
public is protected from licensees who are impaired due to alcohol
or drug abuse or mental or physical illness. The audit shall be
completed by January 1, 2014. The board and its staff shall cooperate
with the audit, and the board shall provide data, information, and
case files as requested by the auditor to perform all of his or her
duties. The provision of confidential data, information, and case
files by the board to the auditor shall not constitute a waiver of
any exemption from disclosure or discovery or of any confidentiality
protection or privilege otherwise provided by law that is applicable
to the data, information, or case files.
(c) It is the intent of the Legislature that the audit shall be
paid for with funds from the State Dentistry Fund.
SEC. 25. Section 1707 is added to the
Business and Professions Code , to read:
1707. Notwithstanding any other provision of law, it is a public
offense, punishable by a fine not to exceed one hundred thousand
dollars ($100,000), by imprisonment in a county jail not to exceed
one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
practice dentistry to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice dentistry or to violate any provision of this chapter.
SEC. 31. SEC. 26. Section 1947.1 is
added to the Business and Professions Code, to read:
1947.1. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 32. SEC. 27. Section 1947.2 is
added to the Business and Professions Code, to read:
1947.2. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 33. SEC. 28. Section 1947.3 is
added to the Business and Professions Code, to read:
1947.3. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The board shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The board shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the issue
of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the board
shall suspend the license until the time for appeal has elapsed, if
no appeal has been taken, or until the judgment of conviction has
been affirmed on appeal or has otherwise become final, and until
further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the board may decline to impose or may set
aside the suspension when it appears to be in the interest of justice
to do so, with due regard to maintaining the integrity of, and
confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the board when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the board from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 34. SEC. 29. Section 1947.4 is
added to the Business and Professions Code, to read:
1947.4. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision or decision shall
not contain any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 35. Section 1947.5 is added to the
Business and Professions Code, to read:
1947.5. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal
Code, or the equivalent in another state or territory, under military
law, or under federal law, the board shall be subject to the
following requirements:
(1) The board shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the board
shall promptly revoke the license of the individual in accordance
with the procedures set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
board shall not stay the revocation and place the license on
probation.
(3) The board shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 36. SEC. 30. Section 1947.6 is
added to the Business and Professions Code, to read:
1947.6. (a) Notwithstanding any other provision of law, any
employer of a licensee shall report to the board the suspension or
termination for cause, or any resignation in lieu of suspension or
termination for cause, of any licensee in its employ within 15
business days. The report shall not be made until after the
conclusion of the review process specified in Section 52.3 of Title 2
of the California Code of Regulations and Skelly v. State Personnel
Bd. (1975) 15 Cal.3d 194, for public employees. This required
reporting shall not constitute a waiver of confidentiality of medical
records. The information reported or disclosed shall be kept
confidential except as provided in subdivision (c) of Section 800 and
shall not be subject to discovery in civil cases.
(b) The information to be reported by the employer shall include
the name and license number of the licentiate involved, a description
of the facts and circumstances of the suspension or termination for
cause, any resignation in lieu of suspension or termination for
cause, and any other relevant information deemed appropriate by the
employer.
(c) The board shall be entitled to inspect and copy the following
documents in the record for any suspension or termination for cause,
or any resignation in lieu of suspension or termination for cause,
resulting in action that is required to be reported pursuant to this
section:
(1) Any statement for suspension or termination of the licensee.
(2) Any document or exhibits relevant to the suspension or
termination.
(d) If, during the investigation by the board of the cause for the
termination or suspension or resignation of the licensee, it is
found that there has been a violation of existing state or federal
law, the board shall report the violation to the appropriate agency.
(e) For purposes of this section, "suspension or termination for
cause" or "resignation in lieu of suspension or termination for cause"
is defined as resignation, suspension, or termination from
employment for any of the following reasons:
(1) Use of controlled substances or alcohol to the extent that it
impairs the licensee's ability to safely practice.
(2) Unlawful sale of a controlled substance or other prescription
items.
(3) Patient or client abuse, neglect, physical harm, or sexual
contact with a patient or client.
(4) Gross negligence or incompetence.
(5) Theft from a patient or client, any other employee, or the
employer.
(f) As used in this section, the following definitions apply:
(1) "Gross negligence" means a substantial departure from the
standard of care, which, under similar circumstances, would have
ordinarily been exercised by a competent licensee, and which has or
could have resulted in harm to the consumer. An exercise of so slight
a degree of care as to justify the belief that there was a conscious
disregard or indifference for the health, safety, or welfare of the
consumer shall be considered a substantial departure from the
standard of care.
(2) "Incompetence" means the lack of possession of, and the
failure to exercise that degree of learning, skill, care, and
experience ordinarily possessed by, a responsible licensee.
(3) "Willful" means a knowing and intentional violation of a known
legal duty.
(g) (1) Willful failure of an employer to make a report required
by this section is punishable by an administrative fine not to exceed
one hundred thousand dollars ($100,000) per violation.
(2) Any failure of an employer, other than willful failure, to
make a report required by this section is punishable by an
administrative fine not to exceed fifty thousand dollars ($50,000).
(h) The board shall investigate the circumstances underlying any
report received pursuant to this section within 30 days to determine
if an interim suspension order or temporary restraining order should
be issued. The board shall otherwise provide timely disposition of
the reports received pursuant to this section.
(i) The board shall send to the licentiate a copy of the report
along with the reasons for the filing of the report and notice
advising the licentiate of his or her right to submit additional
statements or other information to the board.
(j) Pursuant to Section 43.8 of the Civil Code, no person shall
incur any civil penalty as a result of making any report required by
this article.
(k) No report is required under this section where a report of the
action taken is already required under Section 805.
SEC. 37. SEC. 31. Section 1947.7 is
added to the Business and Professions Code, to read:
1947.7. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information, including the name and license
number, in its possession, custody, or control regarding every
licensee for which whom the board
licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the board.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 38. SEC. 32. Section 1947.8 is
added to the Business and Professions Code, to read:
1947.8. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The board shall notify the
licensee of the license suspension and of his or her right to have
the issue of penalty heard as provided in this section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 33. Section 1954.5 is added to the
Business and Professions Code , to read:
1954.5. Notwithstanding any other provision of law, it is a
public offense, punishable by a fine not to exceed one hundred
thousand dollars ($100,000), by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
practice dental hygiene to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice dental hygiene or to violate any provision of this chapter.
SEC. 39. SEC. 34. Section 2246 of
the Business and Professions Code is amended to read:
2246. (a) Any proposed decision or decision issued under this
article that contains any finding of fact that the licensee engaged
in any act of sexual exploitation, as described in paragraphs (3) to
(5), inclusive, of subdivision (b) of Section 729, with a patient
shall contain an order of revocation. The revocation shall not be
stayed by the administrative law judge.
(b) Except as otherwise provided, any proposed decision or
decision issued under this article in accordance with the procedures
set forth in Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2 of the Government Code, that contains any
finding of fact that the licensee has committed a sex offense, shall
contain an order revoking the license. The proposed decision or
decision shall not contain any order staying the revocation of the
licensee.
(c) As used in this section, the term sex offense
"sex offense" shall mean any of the following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 35. Section 2320 is added to the
Business and Professions Code , to read:
2320. Notwithstanding any other provision of law, it is a public
offense, punishable by a fine not to exceed one hundred thousand
dollars ($100,000), by imprisonment in a county jail not to exceed
one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
practice medicine to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice medicine or to violate any provision of this chapter.
SEC. 36. Section 2360 of the Business
and Professions Code is amended to read:
2360. (a) It is the intent of the
Legislature that the Osteopathic Medical Board of California seek
ways and means to identify and rehabilitate osteopathic physicians
and surgeons whose competency may be impaired due to abuse of
dangerous drugs and alcohol, so that osteopathic physicians and
surgeons so afflicted may be treated and returned to the practice of
medicine in a manner which will not endanger the public health and
safety. It is also the intent of the Legislature that the Osteopathic
Medical Board of California shall implement this legislation by
establishing a diversion program as a voluntary alternative approach
to traditional disciplinary actions.
(b) It is the intent of the Legislature, through a request in 2013
from the Joint Legislative Audit Committee, that the Bureau of State
Audits shall conduct a thorough performance audit of the board's
diversion program to evaluate the effectiveness and efficiency of the
program, and make recommendations regarding the continuation of the
program and any changes or reforms required to ensure that licensees
participating in the program are appropriately monitored and that the
public is protected from licensees who are impaired due to alcohol
or drug abuse or mental or physical illness. The audit shall be
completed by January 1, 2014. The board and its staff shall cooperate
with the audit, and the board shall provide data, information, and
case files as requested by the auditor to perform all of his or her
duties. The provision of confidential data, information, and case
files by the board to the auditor shall not constitute a waiver of
any exemption from disclosure or discovery or of any confidentiality
protection or privilege otherwise provided by law that is applicable
to the data, information, or case files.
(c) It is the intent of the Legislature that the audit be paid for
with funds from the Osteopathic Medical Board of California
Contingent Fund.
SEC. 37. Section 2458.1 is added to the
Business and Professions Code , to read:
2458.1. Notwithstanding any other provision of law, it is a
public offense, punishable by a fine not to exceed one hundred
thousand dollars ($100,000), by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
practice osteopathic medicine to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice osteopathic medicine or to violate any provision of this
chapter.
SEC. 40. SEC. 38. Section 2533.5 is
added to the Business and Professions Code, to read:
2533.5. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 41. SEC. 39. Section 2533.6 is
added to the Business and Professions Code, to read:
2533.6. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 42. SEC. 40. Section 2533.7 is
added to the Business and Professions Code, to read:
2533.7. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The board shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The board shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the issue
of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the board
shall suspend the license until the time for appeal has elapsed, if
no appeal has been taken, or until the judgment of conviction has
been affirmed on appeal or has otherwise become final, and until
further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the board may decline to impose or may set
aside the suspension when it appears to be in the interest of justice
to do so, with due regard to maintaining the integrity of, and
confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the board when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the board from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 43. SEC. 41. Section 2533.8 is
added to the Business and Professions Code, to read:
2533.8. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section
243.4(a)-(d), 261.5, 313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4,
Section 261.5 or 313.1, or subdivision (a) or (d) of Section 647 of
the Penal Code, or a finding that a person committed such act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 44. Section 2533.9 is added to the
Business and Professions Code, to read:
2533.9. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the board shall
be subject to the following requirements:
(1) The board shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the board
shall promptly revoke the license of the individual in accordance
with the procedures set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
board shall not stay the revocation and place the license on
probation.
(3) The board shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 45. Section 2533.10 is added to the
Business and Professions Code, to read:
2533.10. (a) Notwithstanding any other provision of law making a
communication between a licensee and his or her patients a privileged
communication, those provisions shall not apply to investigations or
proceedings conducted by the board. Members of the board, deputies,
employees, agents, the office of the Attorney General, and
representatives of the board shall keep in confidence during the
course of investigations the names of any patients whose records are
reviewed and may not disclose or reveal those names, except as is
necessary during the course of an investigation, unless and until
proceedings are instituted. The authority under this subdivision to
examine records of patients in the office of a licensee is limited to
records of patients who have complained to the board about that
licensee.
(b) Notwithstanding any other provision of law, the Attorney
General and his or her investigative agents, and the board and its
investigators and representatives may inquire into any alleged
violation of the laws under the jurisdiction of the board or any
other federal or state law, regulation, or rule relevant to the
practice regulated by the board, whichever is applicable, and may
inspect documents relevant to those investigations in accordance with
the following procedures:
(1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where a patient provides written
authorization.
(2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied where relevant to
an investigation of a licensee.
(c) In all cases where documents are inspected or copies of those
documents are received, their acquisition or review shall be arranged
so as not to unnecessarily disrupt the medical and business
operations of the licensee or of the facility where the records are
kept or used.
(d) Where certified documents are lawfully requested from
licensees in accordance with this section by the Attorney General or
his or her agents or deputies, or investigators of any board, the
documents shall be provided within 10 business days of receipt of the
request, unless the licensee is unable to provide the certified
documents within this time period for good cause, including, but not
limited to, physical inability to access the records in the time
allowed due to illness or travel. Failure to produce requested
certified documents or copies thereof, after being informed of the
required deadline, shall constitute unprofessional conduct. A board
may use its authority to cite and fine a licensee for any violation
of this section. This remedy is in addition to any other authority of
the board to sanction a licensee for a delay in producing requested
records.
(e) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care of
patients.
(f) The licensee shall cooperate with the board in furnishing
information or assistance as may be required, including, but not
limited to, participation in an interview with investigators or
representatives of the board.
(g) This section shall not apply to a licensee who does not have
access to, and control over, certified medical records or other types
of documents that belong to or are controlled by a health facility
or clinic.
SEC. 46. Section 2533.11 is added to the
Business and Professions Code, to read:
2533.11. (a) (1) Notwithstanding any other provision of law, a
licensee who fails or refuses to comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section shall be required
to pay to the board a civil penalty of up to one thousand dollars
($1,000) per day for each day that the documents have not been
produced after the 15th day, up to ten thousand dollars ($10,000),
unless the licensee is unable to provide the documents within this
time period for good cause.
(2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section. Failure to provide
the authorizing patient's certified medical records to the board
within 15 days of receiving the request, authorization, and notice
shall subject the health care facility to a civil penalty, payable to
the board, of up to one thousand dollars ($1,000) per day for each
day that the documents have not been produced after the 15th day, up
to ten thousand dollars ($10,000), unless the health care facility is
unable to provide the documents within this time period for good
cause. This paragraph shall not require health care facilities to
assist the board in obtaining the patient's authorization. The board
shall pay the reasonable costs of copying the certified medical
records, but shall not be required to make that payment prior to the
production of the medical records.
(b) (1) A licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board, shall pay to the board a civil penalty of
up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced after the date by which the court
order requires the documents to be produced, up to ten thousand
dollars ($10,000), unless it is determined that the order is unlawful
or invalid. Any statute of limitations applicable to the filing of
an accusation by the board shall be tolled during the period the
licensee is out of compliance with the court order and during any
related appeals.
(2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to a board is guilty of a misdemeanor punishable by a
fine payable to the board not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by the board
shall be tolled during the period the licensee is out of compliance
with the court order and during any related appeals.
(3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to the board, that is accompanied by a
notice citing this section and describing the penalties for failure
to comply with this section, shall pay to the healing arts board a
civil penalty of up to one thousand dollars ($1,000) per day for each
day that the documents have not been produced, up to ten thousand
dollars ($10,000), after the date by which the court order requires
the documents to be produced, unless it is determined that the order
is unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to the board is guilty of a misdemeanor
punishable by a fine payable to the board not to exceed five thousand
dollars ($5,000). Any statute of limitations applicable to the
filing of an accusation by the healing arts board against a licensee
shall be tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. Multiple acts by a
health care facility in violation of subdivision (b) shall be
punishable by a fine not to exceed five thousand dollars ($5,000),
shall be reported to the State Department of Public Health, and shall
be considered as grounds for disciplinary action with respect to
licensure, including suspension or revocation of the license or
certificate.
(d) A failure or refusal of a licensee to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the healing arts board constitutes unprofessional
conduct and is grounds for suspension or revocation of his or her
license.
(e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code). Any civil penalties paid to, or received by, the
board pursuant to this section shall be deposited into the fund
administered by the board.
(f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the licensee's board.
(g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.
(h) If a board complies with Section 1684.1, 2225.5, or 2969, that
board shall not be subject to the requirements of this section.
(i) This section shall not apply to a licensee who does not have
access to, or control over, certified medical records or other types
of documents that belong to or are controlled by a health facility or
clinic.
SEC. 42. Section 2533.9 is added to the
Business and Professions Code , to read:
2533.9. Notwithstanding any other provision of law, it is a
public offense, punishable by a fine not to exceed one hundred
thousand dollars ($100,000), by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
practice speech-language pathology and audiology to engage in that
practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice speech-language pathology and audiology or to violate any
provision of this chapter.
SEC. 47. SEC. 43. Section 2533.12 is
added to the Business and Professions Code, to read:
2533.12. (a) Notwithstanding any other provision of law, any
employer of a licensee shall report to the board the suspension or
termination for cause, or any resignation in lieu of suspension or
termination for cause, of any licensee in its employ within 15
business days. The report shall not be made until after the
conclusion of the review process specified in Section 52.3 of Title 2
of the California Code of Regulations and Skelly v. State Personnel
Bd. (1975) 15 Cal.3d 194, for public employees. This required
reporting shall not constitute a waiver of confidentiality of medical
records. The information reported or disclosed shall be kept
confidential except as provided in subdivision (c) of Section 800 and
shall not be subject to discovery in civil cases.
(b) The information to be reported by the employer shall include
the name and license number of the licentiate involved, a description
of the facts and circumstances of the suspension or termination for
cause, any resignation in lieu of suspension or termination for
cause, and any other relevant information deemed appropriate by the
employer.
(c) The board shall be entitled to inspect and copy the following
documents in the record for any suspension or termination for cause,
or any resignation in lieu of suspension or termination for cause,
resulting in action that is required to be reported pursuant to this
section:
(1) Any statement for suspension or termination of the licensee.
(2) Any document or exhibits relevant to the suspension or
termination.
(d) If, during the investigation by the board of the cause for the
termination or suspension or resignation of the licensee, it is
found that there has been a violation of existing state or federal
law, the board shall report the violation to the appropriate agency.
(e) For purposes of this section, "suspension or termination for
cause" or "resignation in lieu of suspension or termination for cause"
is defined as resignation, suspension, or termination from
employment for any of the following reasons:
(1) Use of controlled substances or alcohol to the extent that it
impairs the licensee's ability to safely practice.
(2) Unlawful sale of a controlled substance or other prescription
items.
(3) Patient or client abuse, neglect, physical harm, or sexual
contact with a patient or client.
(4) Gross negligence or incompetence.
(5) Theft from a patient or client, any other employee, or the
employer.
(f) As used in this section, the following definitions apply:
(1) "Gross negligence" means a substantial departure from the
standard of care, which, under similar circumstances, would have
ordinarily been exercised by a competent licensee, and which has or
could have resulted in harm to the consumer. An exercise of so slight
a degree of care as to justify the belief that there was a conscious
disregard or indifference for the health, safety, or welfare of the
consumer shall be considered a substantial departure from the
standard of care.
(2) "Incompetence" means the lack of possession of, and the
failure to exercise that degree of learning, skill, care, and
experience ordinarily possessed by, a responsible licensee.
(3) "Willful" means a knowing and intentional violation of a known
legal duty.
(g) (1) Willful failure of an employer to make a report required
by this section is punishable by an administrative fine not to exceed
one hundred thousand dollars ($100,000) per violation.
(2) Any failure of an employer, other than willful failure, to
make a report required by this section is punishable by an
administrative fine not to exceed fifty thousand dollars ($50,000).
(h) The board shall investigate the circumstances underlying any
report received pursuant to this section within 30 days to determine
if an interim suspension order or temporary restraining order should
be issued. The board shall otherwise provide timely disposition of
the reports received pursuant to this section.
(i) The board shall send to the licentiate a copy of the report
along with the reasons for the filing of the report and notice
advising the licentiate of his or her right to submit additional
statements or other information to the board.
(j) Pursuant to Section 43.8 of the Civil Code, no person shall
incur any civil penalty as a result of making any report required by
this article.
(k) No report is required under this section where a report of the
action taken is already required under Section 805.
SEC. 48. SEC. 44. Section 2533.13 is
added to the Business and Professions Code, to read:
2533.13. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information including the name and license
number in its possession, custody, or control regarding every
licensee for which whom the board
licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the board.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 2533.11 or 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 49. SEC. 45. Section 2533.14 is
added to the Business and Professions Code, to read:
2533.14. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The healing arts board
shall notify the licensee of the license suspension and of his or her
right to have the issue of penalty heard as provided in this
section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on
the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 46. Section 2538.52.5 is added to the
Business and Professions Code , to read:
2538.52.5. Notwithstanding any other provision of
law, it is a public offense, punishable by a fine not to exceed one
hundred thousand dollars ($100,000), by imprisonment in a county jail
not to exceed one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
fit and sell hearing aids to engage in the fitting and selling of
hearing aids.
(b) Any person to fraudulently buy, sell, or obtain a license to
fit and sell hearing aids or to violate any provision of this
chapter.
SEC. 50. SEC. 47. Section 2570.38 is
added to the Business and Professions Code, to read:
2570.38. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 51. SEC. 48. Section 2570.39 is
added to the Business and Professions Code, to read:
2570.39. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 52. SEC. 49. Section 2570.40 is
added to the Business and Professions Code, to read:
2570.40. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The board shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The board shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the issue
of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the board
shall suspend the license until the time for appeal has elapsed, if
no appeal has been taken, or until the judgment of conviction has
been affirmed on appeal or has otherwise become final, and until
further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the board may decline to impose or may set
aside the suspension when it appears to be in the interest of justice
to do so, with due regard to maintaining the integrity of, and
confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the board when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the board from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 53. SEC. 50. Section 2570.41 is
added to the Business and Professions Code, to read:
2570.41. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense" shall mean any of the following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 54. Section 2570.42 is added to the
Business and Professions Code, to read:
2570.42. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the board shall
be subject to the following requirements:
(1) The board shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the board
shall promptly revoke the license of the individual in accordance
with the procedures set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
board shall not stay the revocation and place the license on
probation.
(3) The board shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 55. Section 2570.43 is added to the
Business and Professions Code, to read:
2570.43. (a) Notwithstanding any other provision of law making a
communication between a licensee and his or her patients a privileged
communication, those provisions shall not apply to investigations or
proceedings conducted by the board. Members of the board, deputies,
employees, agents, the office of the Attorney General, and
representatives of the board shall keep in confidence during the
course of investigations the names of any patients whose records are
reviewed and may not disclose or reveal those names, except as is
necessary during the course of an investigation, unless and until
proceedings are instituted. The authority under this subdivision to
examine records of patients in the office of a licensee is limited to
records of patients who have complained to the board about that
licensee.
(b) Notwithstanding any other provision of law, the Attorney
General and his or her investigative agents, and the board and its
investigators and representatives may inquire into any alleged
violation of the laws under the jurisdiction of the board or any
other federal or state law, regulation, or rule relevant to the
practice regulated by the board, whichever is applicable, and may
inspect documents relevant to those investigations in accordance with
the following procedures:
(1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where a patient provides written
authorization.
(2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied where relevant to
an investigation of a licensee.
(c) In all cases where documents are inspected or copies of those
documents are received, their acquisition or review shall be arranged
so as not to unnecessarily disrupt the medical and business
operations of the licensee or of the facility where the records are
kept or used.
(d) Where certified documents are lawfully requested from
licensees in accordance with this section by the Attorney General or
his or her agents or deputies, or investigators of any board, the
documents shall be provided within 10 business days of receipt of the
request, unless the licensee is unable to provide the certified
documents within this time period for good cause, including, but not
limited to, physical inability to access the records in the time
allowed due to illness or travel. Failure to produce requested
certified documents or copies thereof, after being informed of the
required deadline, shall constitute unprofessional conduct. A board
may use its authority to cite and fine a licensee for any violation
of this section. This remedy is in addition to any other authority of
the healing arts board to sanction a licensee for a delay in
producing requested records.
(e) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care of
patients.
(f) The licensee shall cooperate with the board in furnishing
information or assistance as may be required, including, but not
limited to, participation in an interview with investigators or
representatives of the healing arts board.
(g) This section shall not apply to a licensee who does not have
access to, and control over, certified medical records or other types
of documents that belong to or are controlled by a health facility
or clinic.
SEC. 56. Section 2570.44 is added to the
Business and Professions Code, to read:
2570.44. (a) (1) Notwithstanding any other provision of law, a
licensee who fails or refuses to comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section shall be required
to pay to the board a civil penalty of up to one thousand dollars
($1,000) per day for each day that the documents have not been
produced after the 15th day, up to ten thousand dollars ($10,000),
unless the licensee is unable to provide the documents within this
time period for good cause.
(2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section. Failure to provide
the authorizing patient's certified medical records to the board
within 15 days of receiving the request, authorization, and notice
shall subject the health care facility to a civil penalty, payable to
the board, of up to one thousand dollars ($1,000) per day for each
day that the documents have not been produced after the 15th day, up
to ten thousand dollars ($10,000), unless the health care facility is
unable to provide the documents within this time period for good
cause. This paragraph shall not require health care facilities to
assist the board in obtaining the patient's authorization. The board
shall pay the reasonable costs of copying the certified medical
records, but shall not be required to make that payment prior to the
production of the medical records.
(b) (1) A licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board, shall pay to the board a civil penalty of
up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced after the date by which the court
order requires the documents to be produced, up to ten thousand
dollars ($10,000), unless it is determined that the order is unlawful
or invalid. Any statute of limitations applicable to the filing of
an accusation by the board shall be tolled during the period the
licensee is out of compliance with the court order and during any
related appeals.
(2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to a board is guilty of a misdemeanor punishable by a
fine payable to the board not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by the board
shall be tolled during the period the licensee is out of compliance
with the court order and during any related appeals.
(3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to the board, that is accompanied by a
notice citing this section and describing the penalties for failure
to comply with this section, shall pay to the board a civil penalty
of up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced, up to ten thousand dollars
($10,000), after the date by which the court order requires the
documents to be produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to the board is guilty of a misdemeanor
punishable by a fine payable to the board not to exceed five thousand
dollars ($5,000). Any statute of limitations applicable to the
filing of an accusation by the healing arts board against a licensee
shall be tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. Multiple acts by a
health care facility in violation of subdivision (b) shall be
punishable by a fine not to exceed five thousand dollars ($5,000),
shall be reported to the State Department of Public Health, and shall
be considered as grounds for disciplinary action with respect to
licensure, including suspension or revocation of the license or
certificate.
(d) A failure or refusal of a licensee to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the healing arts board constitutes unprofessional
conduct and is grounds for suspension or revocation of his or her
license.
(e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code). Any civil penalties paid to, or received by, the
board pursuant to this section shall be deposited into the fund
administered by the board.
(f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the licensee's board.
(g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.
(h) If a board complies with Section 1684.1, 2225.5, or 2969, that
board shall not be subject to the requirements of this section.
(i) This section shall not apply to a licensee who does not have
access to, or control over, certified medical records or other types
of documents that belong to or are controlled by a health facility or
clinic.
SEC. 57. SEC. 51. Section 2570.45 is
added to the Business and Professions Code, to read:
2570.45. (a) Notwithstanding any other provision of law, any
employer of a licensee shall report to the board the suspension or
termination for cause, or any resignation in lieu of suspension or
termination for cause, of any licensee in its employ within 15
business days. The report shall not be made until after the
conclusion of the review process specified in Section 52.3 of Title 2
of the California Code of Regulations and Skelly v. State Personnel
Bd. (1975) 15 Cal.3d 194, for public employees. This required
reporting shall not constitute a waiver of confidentiality of medical
records. The information reported or disclosed shall be kept
confidential except as provided in subdivision (c) of Section 800 and
shall not be subject to discovery in civil cases.
(b) The information to be reported by the employer shall include
the name and license number of the licentiate involved, a description
of the facts and circumstances of the suspension or termination for
cause, any resignation in lieu of suspension or termination for
cause, and any other relevant information deemed appropriate by the
employer.
(c) The board shall be entitled to inspect and copy the following
documents in the record for any suspension or termination for cause,
or any resignation in lieu of suspension or termination for cause,
resulting in action that is required to be reported pursuant to this
section:
(1) Any statement for suspension or termination of the licensee.
(2) Any document or exhibits relevant to the suspension or
termination.
(d) If, during the investigation by the board of the cause for the
termination or suspension or resignation of the licensee, it is
found that there has been a violation of existing state or federal
law, the board shall report the violation to the appropriate agency.
(e) For purposes of this section, "suspension or termination for
cause" or "resignation in lieu of suspension or termination for cause"
is defined as resignation, suspension, or termination from
employment for any of the following reasons:
(1) Use of controlled substances or alcohol to the extent that it
impairs the licensee's ability to safely practice.
(2) Unlawful sale of a controlled substance or other prescription
items.
(3) Patient or client abuse, neglect, physical harm, or sexual
contact with a patient or client.
(4) Gross negligence or incompetence.
(5) Theft from a patient or client, any other employee, or the
employer.
(f) As used in this section, the following definitions apply:
(1) "Gross negligence" means a substantial departure from the
standard of care, which, under similar circumstances, would have
ordinarily been exercised by a competent licensee, and which has or
could have resulted in harm to the consumer. An exercise of so slight
a degree of care as to justify the belief that there was a conscious
disregard or indifference for the health, safety, or welfare of the
consumer shall be considered a substantial departure from the
standard of care.
(2) "Incompetence" means the lack of possession of, and the
failure to exercise that degree of learning, skill, care, and
experience ordinarily possessed by, a responsible licensee.
(3) "Willful" means a knowing and intentional violation of a known
legal duty.
(g) (1) Willful failure of an employer to make a report required
by this section is punishable by an administrative fine not to exceed
one hundred thousand dollars ($100,000) per violation.
(2) Any failure of an employer, other
than willful failure, to make a report required by this section is
punishable by an administrative fine not to exceed fifty thousand
dollars ($50,000).
(h) The board shall investigate the circumstances underlying any
report received pursuant to this section within 30 days to determine
if an interim suspension order or temporary restraining order should
be issued. The board shall otherwise provide timely disposition of
the reports received pursuant to this section.
(i) The board shall send to the licentiate a copy of the report
along with the reasons for the filing of the report and notice
advising the licentiate of his or her right to submit additional
statements or other information to the board.
(j) Pursuant to Section 43.8 of the Civil Code, no person shall
incur any civil penalty as a result of making any report required by
this article.
(k) No report is required under this section where a report of the
action taken is already required under Section 805.
SEC. 58. SEC. 52. Section 2570.46 is
added to the Business and Professions Code, to read:
2570.46. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information, including the name and license
number, in its possession, custody, or control regarding every
licensee for which whom the board
licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the healing arts board.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 2570.44 or 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 59. SEC. 53. Section 2570.47 is
added to the Business and Professions Code, to read:
2570.47. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The board shall notify the
licensee of the license suspension and of his or her right to have
the issue of penalty heard as provided in this section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 60. Section 2608.5 of the Business and
Professions Code is repealed.
SEC. 61. Section 2660.5 of the Business and
Professions Code is repealed.
SEC. 54. Section 2570.48 is added to the
Business and Professions Code , to read:
2570.48. Notwithstanding any other provision of law, it is a
public offense, punishable by a fine not to exceed one hundred
thousand dollars ($100,000), by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
practice occupational therapy to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice occupational therapy or to violate any provision of this
chapter.
SEC. 62. SEC. 55. Section 2661.8 is
added to the Business and Professions Code, to read:
2661.8. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 63. SEC. 56. Section 2661.9 is
added to the Business and Professions Code, to read:
2661.9. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 64. SEC. 57. Section 2661.10 is
added to the Business and Professions Code, to read:
2661.10. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The board shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The board shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the issue
of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the board
shall suspend the license until the time for appeal has elapsed, if
no appeal has been taken, or until the judgment of conviction has
been affirmed on appeal or has otherwise become final, and until
further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the board may decline to impose or may set
aside the suspension when it appears to be in the interest of justice
to do so, with due regard to maintaining the integrity of, and
confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the board when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the board from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 65. SEC. 58. Section 2661.11 is
added to the Business and Professions Code, to read:
2661.11. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 66. Section 2661.12 is added to the
Business and Professions Code, to read:
2661.12. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the board shall
be subject to the following requirements:
(1) The board shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the board
shall promptly revoke the license of the individual in accordance
with the procedures set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
board shall not stay the revocation and place the license on
probation.
(3) The board shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 67. Section 2661.13 is added to the
Business and Professions Code, to read:
2661.13. (a) Notwithstanding any other provision of law making a
communication between a licensee and his or her patients a privileged
communication, those provisions shall not apply to investigations or
proceedings conducted by the board. Members of the board, deputies,
employees, agents, the office of the Attorney General, and
representatives of the board shall keep in confidence during the
course of investigations the names of any patients whose records are
reviewed and may not disclose or reveal those names, except as is
necessary during the course of an investigation, unless and until
proceedings are instituted. The authority under this subdivision to
examine records of patients in the office of a licensee is limited to
records of patients who have complained to the board about that
licensee.
(b) Notwithstanding any other provision of law, the Attorney
General and his or her investigative agents, and the board and its
investigators and representatives may inquire into any alleged
violation of the laws under the jurisdiction of the board or any
other federal or state law, regulation, or rule relevant to the
practice regulated by the board, whichever is applicable, and may
inspect documents relevant to those investigations in accordance with
the following procedures:
(1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where a patient provides written
authorization.
(2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied where relevant to
an investigation of a licensee.
(c) In all cases where documents are inspected or copies of those
documents are received, their acquisition or review shall be arranged
so as not to unnecessarily disrupt the medical and business
operations of the licensee or of the facility where the records are
kept or used.
(d) Where certified documents are lawfully requested from
licensees in accordance with this section by the Attorney General or
his or her agents or deputies, or investigators of any board, the
documents shall be provided within 10 business days of receipt of the
request, unless the licensee is unable to provide the certified
documents within this time period for good cause, including, but not
limited to, physical inability to access the records in the time
allowed due to illness or travel. Failure to produce requested
certified documents or copies thereof, after being informed of the
required deadline, shall constitute unprofessional conduct. A board
may use its authority to cite and fine a licensee for any violation
of this section. This remedy is in addition to any other authority of
the board to sanction a licensee for a delay in producing requested
records.
(e) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care of
patients.
(f) The licensee shall cooperate with the board in furnishing
information or assistance as may be required, including, but not
limited to, participation in an interview with investigators or
representatives of the board.
(g) This section shall not apply to a licensee who does not have
access to, and control over, certified medical records or other types
of documents that belong to or are controlled by a health facility
or clinic.
SEC. 68. Section 2661.14 is added to the
Business and Professions Code, to read:
2661.14. (a) (1) Notwithstanding any other provision of law, a
licensee who fails or refuses to comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section shall be required
to pay to the board a civil penalty of up to one thousand dollars
($1,000) per day for each day that the documents have not been
produced after the 15th day, up to ten thousand dollars ($10,000),
unless the licensee is unable to provide the documents within this
time period for good cause.
(2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section. Failure to provide
the authorizing patient's certified medical records to the board
within 15 days of receiving the request, authorization, and notice
shall subject the health care facility to a civil penalty, payable to
the board, of up to one thousand dollars ($1,000) per day for each
day that the documents have not been produced after the 15th day, up
to ten thousand dollars ($10,000), unless the health care facility is
unable to provide the documents within this time period for good
cause. This paragraph shall not require health care facilities to
assist the board in obtaining the patient's authorization. The board
shall pay the reasonable costs of copying the certified medical
records, but shall not be required to make that payment prior to the
production of the medical records.
(b) (1) A licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board, shall pay to the board a civil penalty of
up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced after the date by which the court
order requires the documents to be produced, up to ten thousand
dollars ($10,000), unless it is determined that the order is unlawful
or invalid. Any statute of limitations applicable to the filing of
an accusation by the board shall be tolled during the period the
licensee is out of compliance with the court order and during any
related appeals.
(2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to a board is guilty of a misdemeanor punishable by a
fine payable to the board not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by the board
shall be tolled during the period the licensee is out of compliance
with the court order and during any related appeals.
(3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to
the board, that is accompanied by a notice citing this section and
describing the penalties for failure to comply with this section,
shall pay to the board a civil penalty of up to one thousand dollars
($1,000) per day for each day that the documents have not been
produced, up to ten thousand dollars ($10,000), after the date by
which the court order requires the documents to be produced, unless
it is determined that the order is unlawful or invalid. Any statute
of limitations applicable to the filing of an accusation by the board
against a licensee shall be tolled during the period the health care
facility is out of compliance with the court order and during any
related appeals.
(4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to the board is guilty of a misdemeanor
punishable by a fine payable to the board not to exceed five thousand
dollars ($5,000). Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. Multiple acts by a
health care facility in violation of subdivision (b) shall be
punishable by a fine not to exceed five thousand dollars ($5,000),
shall be reported to the State Department of Public Health, and shall
be considered as grounds for disciplinary action with respect to
licensure, including suspension or revocation of the license or
certificate.
(d) A failure or refusal of a licensee to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board constitutes unprofessional conduct and is
grounds for suspension or revocation of his or her license.
(e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code). Any civil penalties paid to, or received by, the
board pursuant to this section shall be deposited into the fund
administered by the board.
(f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the licensee's board.
(g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.
(h) If a board complies with Section 1684.1, 2225.5, or 2969, that
board shall not be subject to the requirements of this section.
(i) This section shall not apply to a licensee who does not have
access to, or control over, certified medical records or other types
of documents that belong to or are controlled by a health facility or
clinic.
SEC. 69. SEC. 59. Section 2661.15 is
added to the Business and Professions Code, to read:
2661.15. (a) Notwithstanding any other provision of law, any
employer of a licensee shall report to the board the suspension or
termination for cause, or any resignation in lieu of suspension or
termination for cause, of any licensee in its employ within 15
business days. The report shall not be made until after the
conclusion of the review process specified in Section 52.3 of Title 2
of the California Code of Regulations and Skelly v. State Personnel
Bd. (1975) 15 Cal.3d 194, for public employees. This required
reporting shall not constitute a waiver of confidentiality of medical
records. The information reported or disclosed shall be kept
confidential except as provided in subdivision (c) of Section 800 and
shall not be subject to discovery in civil cases.
(b) The information to be reported by the employer shall include
the name and license number of the licentiate involved, a description
of the facts and circumstances of the suspension or termination for
cause, any resignation in lieu of suspension or termination for
cause, and any other relevant information deemed appropriate by the
employer.
(c) The board shall be entitled to inspect and copy the following
documents in the record for any suspension or termination for cause,
or any resignation in lieu of suspension or termination for cause,
resulting in action that is required to be reported pursuant to this
section:
(1) Any statement for suspension or termination of the licensee.
(2) Any document or exhibits relevant to the suspension or
termination.
(d) If, during the investigation by the board of the cause for the
termination or suspension or resignation of the licensee, it is
found that there has been a violation of existing state or federal
law, the board shall report the violation to the appropriate agency.
(e) For purposes of this section, "suspension or termination for
cause" or "resignation in lieu of suspension or termination for cause"
is defined as resignation, suspension, or termination from
employment for any of the following reasons:
(1) Use of controlled substances or alcohol to the extent that it
impairs the licensee's ability to safely practice.
(2) Unlawful sale of a controlled substance or other prescription
items.
(3) Patient or client abuse, neglect, physical harm, or sexual
contact with a patient or client.
(4) Gross negligence or incompetence.
(5) Theft from a patient or client, any other employee, or the
employer.
(f) As used in this section, the following definitions apply:
(1) "Gross negligence" means a substantial departure from the
standard of care, which, under similar circumstances, would have
ordinarily been exercised by a competent licensee, and which has or
could have resulted in harm to the consumer. An exercise of so slight
a degree of care as to justify the belief that there was a conscious
disregard or indifference for the health, safety, or welfare of the
consumer shall be considered a substantial departure from the
standard of care.
(2) "Incompetence" means the lack of possession of, and the
failure to exercise that degree of learning, skill, care, and
experience ordinarily possessed by, a responsible licensee.
(3) "Willful" means a knowing and intentional violation of a known
legal duty.
(g) (1) Willful failure of an employer to make a report required
by this section is punishable by an administrative fine not to exceed
one hundred thousand dollars ($100,000) per violation.
(2) Any failure of an employer, other than willful failure, to
make a report required by this section is punishable by an
administrative fine not to exceed fifty thousand dollars ($50,000).
(h) The board shall investigate the circumstances underlying any
report received pursuant to this section within 30 days to determine
if an interim suspension order or temporary restraining order should
be issued. The board shall otherwise provide timely disposition of
the reports received pursuant to this section.
(i) The board shall send to the licentiate a copy of the report
along with the reasons for the filing of the report and notice
advising the licentiate of his or her right to submit additional
statements or other information to the board.
(j) Pursuant to Section 43.8 of the Civil Code, no person shall
incur any civil penalty as a result of making any report required by
this article.
(k) No report is required under this section where a report of the
action taken is already required under Section 805.
SEC. 70. SEC. 60. Section 2661.16 is
added to the Business and Professions Code, to read:
2661.16. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information including the name and license
number in its possession, custody, or control regarding every
licensee for which whom the board
licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the board.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 2661.14 or 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 71. SEC. 61. Section 2661.17 is
added to the Business and Professions Code, to read:
2661.17. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The board shall notify the
licensee of the license suspension and of his or her right to have
the issue of penalty heard as provided in this section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 62. Section 2662 of the Business
and Professions Code is amended to read:
2662. (a) It is the intent of the
Legislature that the board shall seek ways and means to identify and
rehabilitate physical therapists and physical therapist assistants
whose competency is impaired due to abuse of dangerous drugs or
alcohol so that they may be treated and returned to the practice of
physical therapy in a manner which will not endanger the public
health and safety.
(b) It is the intent of the Legislature, through a request in 2013
from the Joint Legislative Audit Committee, that the Bureau of State
Audits conduct a thorough performance audit of the board's diversion
program to evaluate the effectiveness and efficiency of the program,
and make recommendations regarding the continuation of the program
and any changes or reforms required to ensure that physical
therapists and physical therapist assistants participating in the
program are appropriately monitored and that the public is protected
from physical therapists and physical therapist assistants who are
impaired due to alcohol or drug abuse or mental or physical illness.
The audit shall be completed by January 1, 2014. The board and its
staff shall cooperate with the audit, and the board shall provide
data, information, and case files as requested by the auditor to
perform all of his or her duties. The provision of confidential data,
information, and case files by the board to the auditor shall not
constitute a waiver of any exemption from disclosure or discovery or
of any confidentiality protection or privilege otherwise provided by
law that is applicable to the data, information, or case files.
(c) It is the intent of the Legislature that the audit be paid for
with funds from the Physical Therapy Fund.
SEC. 63. Section 2673 is added to the
Business and Professions Code , to read:
2673. It is a public offense, punishable by a fine not to exceed
one hundred thousand dollars ($100,000), by imprisonment in a county
jail not to exceed one year, or by both that fine and imprisonment,
for:
(a) Any person who does not hold a current and valid license to
practice physical therapy to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice physical therapy or to violate any provision of this
chapter.
SEC. 72. SEC. 64. Section 2766 is
added to the Business and Professions Code, to read:
2766. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 73. SEC. 65. Section 2766.1 is
added to the Business and Professions Code, to read:
2766.1. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 74. SEC. 66. Section 2766.2 is
added to the Business and Professions Code, to read:
2766.2. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The board shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The board shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the issue
of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the board
shall suspend the license until the time for appeal has elapsed, if
no appeal has been taken, or until the judgment of conviction has
been affirmed on appeal or has otherwise become final, and until
further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the board may decline to impose or may set
aside the suspension when it appears to be in the interest of justice
to do so, with due regard to maintaining the integrity of, and
confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the board when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the board from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 75. SEC. 67. Section 2766.3 is
added to the Business and Professions Code, to read:
2766.3. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 76. Section 2766.4 is added to the
Business and Professions Code, to read:
2766.4. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the board shall
be subject to the following requirements:
(1) The board shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the board
shall promptly revoke the license of the individual in accordance
with the procedures set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
board shall not stay the revocation and place the license on
probation.
(3) The board shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the
law of the jurisdiction that requires his or her registration as a
sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 77. Section 2766.5 is added to the
Business and Professions Code, to read:
2766.5. (a) Notwithstanding any other provision of law making a
communication between a licensee and his or her patients a privileged
communication, those provisions shall not apply to investigations or
proceedings conducted by the board. Members of the board, deputies,
employees, agents, the office of the Attorney General, and
representatives of the board shall keep in confidence during the
course of investigations the names of any patients whose records are
reviewed and may not disclose or reveal those names, except as is
necessary during the course of an investigation, unless and until
proceedings are instituted. The authority under this subdivision to
examine records of patients in the office of a licensee is limited to
records of patients who have complained to the board about that
licensee.
(b) Notwithstanding any other provision of law, the Attorney
General and his or her investigative agents, and the board and its
investigators and representatives may inquire into any alleged
violation of the laws under the jurisdiction of the board or any
other federal or state law, regulation, or rule relevant to the
practice regulated by the board, whichever is applicable, and may
inspect documents relevant to those investigations in accordance with
the following procedures:
(1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where a patient provides written
authorization.
(2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied where relevant to
an investigation of a licensee.
(c) In all cases where documents are inspected or copies of those
documents are received, their acquisition or review shall be arranged
so as not to unnecessarily disrupt the medical and business
operations of the licensee or of the facility where the records are
kept or used.
(d) Where certified documents are lawfully requested from
licensees in accordance with this section by the Attorney General or
his or her agents or deputies, or investigators of any board, the
documents shall be provided within 10 business days of receipt of the
request, unless the licensee is unable to provide the certified
documents within this time period for good cause, including, but not
limited to, physical inability to access the records in the time
allowed due to illness or travel. Failure to produce requested
certified documents or copies thereof, after being informed of the
required deadline, shall constitute unprofessional conduct. A board
may use its authority to cite and fine a licensee for any violation
of this section. This remedy is in addition to any other authority of
the board to sanction a licensee for a delay in producing requested
records.
(e) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care of
patients.
(f) The licensee shall cooperate with the board in furnishing
information or assistance as may be required, including, but not
limited to, participation in an interview with investigators or
representatives of the board.
(g) This section shall not apply to a licensee who does not have
access to, and control over, certified medical records or other types
of documents that belong to or are controlled by a health facility
or clinic.
SEC. 78. Section 2766.6 is added to the
Business and Professions Code, to read:
2766.6. (a) (1) Notwithstanding any other provision of law, a
licensee who fails or refuses to comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section shall be required
to pay to the board a civil penalty of up to one thousand dollars
($1,000) per day for each day that the documents have not been
produced after the 15th day, up to ten thousand dollars ($10,000),
unless the licensee is unable to provide the documents within this
time period for good cause.
(2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section. Failure to provide
the authorizing patient's certified medical records to the board
within 15 days of receiving the request, authorization, and notice
shall subject the health care facility to a civil penalty, payable to
the board, of up to one thousand dollars ($1,000) per day for each
day that the documents have not been produced after the 15th day, up
to ten thousand dollars ($10,000), unless the health care facility is
unable to provide the documents within this time period for good
cause. This paragraph shall not require health care facilities to
assist the board in obtaining the patient's authorization. The board
shall pay the reasonable costs of copying the certified medical
records, but shall not be required to make that payment prior to the
production of the medical records.
(b) (1) A licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board, shall pay to the board a civil penalty of
up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced after the date by which the court
order requires the documents to be produced, up to ten thousand
dollars ($10,000), unless it is determined that the order is unlawful
or invalid. Any statute of limitations applicable to the filing of
an accusation by the board shall be tolled during the period the
licensee is out of compliance with the court order and during any
related appeals.
(2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to a board is guilty of a misdemeanor punishable by a
fine payable to the board not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by the board
shall be tolled during the period the licensee is out of compliance
with the court order and during any related appeals.
(3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to the board, that is accompanied by a
notice citing this section and describing the penalties for failure
to comply with this section, shall pay to the board a civil penalty
of up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced, up to ten thousand dollars
($10,000), after the date by which the court order requires the
documents to be produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to the board is guilty of a misdemeanor
punishable by a fine payable to the board not to exceed five thousand
dollars ($5,000). Any statute of limitations applicable to the
filing of an accusation by the healing arts board against a licensee
shall be tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. Multiple acts by a
health care facility in violation of subdivision (b) shall be
punishable by a fine not to exceed five thousand dollars ($5,000),
shall be reported to the State Department of Public Health, and shall
be considered as grounds for disciplinary action with respect to
licensure, including suspension or revocation of the license or
certificate.
(d) A failure or refusal of a licensee to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board constitutes unprofessional conduct and is
grounds for suspension or revocation of his or her license.
(e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code). Any civil penalties paid to, or received by, the
board pursuant to this section shall be deposited into the fund
administered by the board.
(f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the licensee's board.
(g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.
(h) If a board complies with Section 1684.1, 2225.5, or 2969, that
board shall not be subject to the requirements of this section.
(i) This section shall not apply to a licensee who does not have
access to, or control over, certified medical records or other types
of documents that belong to or are controlled by a health facility or
clinic.
SEC. 79. SEC. 68. Section 2766.7 is
added to the Business and Professions Code, to read:
2766.7. (a) Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on the
Internet the following information, including the name and license
number, in its possession, custody, or control regarding every
licensee for which whom the board
licenses:
(1) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(2) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(3) Any felony conviction of a licensee reported to the board.
(4) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(5) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the healing arts board.
(6)
(5) Any misdemeanor conviction of a licensee that
results in a disciplinary action or an accusation that is not
subsequently withdrawn or dismissed.
(7)
(6) Appropriate disclaimers and explanatory statements
to accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the healing arts board and shall be
adopted by regulation.
(b) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(c) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, nor the city and county of the licensee's address of record.
SEC. 80. SEC. 69. Section 2766.8 is
added to the Business and Professions Code, to read:
2766.8. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The healing arts board
shall notify the licensee of the license suspension and of his or her
right to have the issue of penalty heard as provided in this
section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 70. Section 2770 of the Business
and Professions Code is amended to read:
2770. (a) It is the intent of the
Legislature that the Board of Registered Nursing seek ways and means
to identify and rehabilitate registered nurses whose competency may
be impaired due to abuse of alcohol and other drugs, or due to mental
illness so that registered nurses so afflicted may be rehabilitated
and returned to the practice of nursing in a manner which will not
endanger the public health and safety. It is also the intent of the
Legislature that the Board of Registered Nursing shall implement this
legislation by establishing a diversion program as a voluntary
alternative to traditional disciplinary actions.
(b) It is the intent of the Legislature, through a request in 2013
from the Joint Legislative Audit Committee, that the Bureau of State
Audits conduct a thorough performance audit of the board's diversion
program to evaluate the effectiveness and efficiency of the program,
and make recommendations regarding the continuation of the program
and any changes or reforms required to ensure that registered nurses
participating in the program are appropriately monitored and that the
public is protected from registered nurses who are impaired due to
alcohol or drug abuse or mental or physical illness. The audit shall
be completed by January 1, 2014. The board and its staff shall
cooperate with the audit, and the board shall provide data,
information, and case files as requested by the auditor to perform
all of his or her duties. The provision of confidential data,
information, and case files by the board to the auditor shall not
constitute a waiver of any exemption from disclosure or discovery or
of any confidentiality protection or privilege otherwise provided by
law that is applicable to the data, information, or case files.
(c) It is the intent of the Legislature that the audit be paid for
with funds from the Board of Registered Nursing Fund.
SEC. 71. Section 2799.2 is added to the
Business and Professions Code , to read:
2799.2. Notwithstanding any other provision of law, it is a
public offense, punishable by a fine not to exceed one hundred
thousand dollars ($100,000), by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
practice registered nursing to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice registered nursing or to violate any provision of this
chapter.
SEC. 81. SEC. 72. Section 2879.1 is
added to the Business and Professions Code, to read:
2879.1. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 82. SEC. 73. Section 2879.2 is
added to the Business and Professions Code, to read:
2879.2. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 83. SEC. 74. Section 2879.3 is
added to the Business and Professions Code, to read:
2879.3. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The board shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The board shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the issue
of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the board
shall suspend the license until the time for appeal has elapsed, if
no appeal has been taken, or until the judgment of conviction has
been affirmed on appeal or has otherwise become final, and until
further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the board may decline to impose or may set
aside the suspension when it appears to be in the interest of justice
to do so, with due regard to maintaining the integrity of, and
confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the board when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an
administrative law judge from the Office of Administrative Hearings.
The hearing shall not be had held until
the judgment of conviction has become final or, irrespective of a
subsequent order under Section 1203.4 of the Penal Code, an order
granting probation has been made suspending the imposition of
sentence; except that a licensee may, at his or her option, elect to
have the issue of penalty decided before those time periods have
elapsed. Where the licensee so elects, the issue of penalty shall be
heard in the manner described in subdivision (b) at the hearing to
determine whether the conviction was substantially related to the
qualifications, functions, or duties of a licensee. If the conviction
of a licensee who has made this election is overturned on appeal,
any discipline ordered pursuant to this section shall automatically
cease. Nothing in this subdivision shall prohibit the board from
pursuing disciplinary action based on any cause other than the
overturned conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 84. SEC. 75. Section 2879.4 is
added to the Business and Professions Code, to read:
2879.4. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 85. Section 2879.5 is added to the
Business and Professions Code, to read:
2879.5. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the board shall
be subject to the following requirements:
(1) The board shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the board
shall promptly revoke the license of the individual in accordance
with the procedures set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
board shall not stay the revocation and place the license on
probation.
(3) The board shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 86. Section 2879.6 is added to the
Business and Professions Code, to read:
2879.6. (a) Notwithstanding any other provision of law making a
communication between a licensee and his or her patients a privileged
communication, those provisions shall not apply to investigations or
proceedings conducted by the board. Members of the board, deputies,
employees, agents, the office of the Attorney General, and
representatives of the board shall keep in confidence during the
course of investigations the names of any patients whose records are
reviewed and may not disclose or reveal those names, except as is
necessary during the course of an investigation, unless and until
proceedings are instituted. The authority under this subdivision to
examine records of patients in the office of a licensee is limited to
records of patients who have complained to the board about that
licensee.
(b) Notwithstanding any other provision of law, the Attorney
General and his or her investigative agents, and the board and its
investigators and representatives may inquire into any alleged
violation of the laws under the jurisdiction of the board or any
other federal or state law, regulation, or rule relevant to the
practice regulated by the board, whichever is applicable, and may
inspect documents relevant to those investigations in accordance with
the following procedures:
(1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where a patient provides written
authorization.
(2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied where relevant to
an investigation of a licensee.
(c) In all cases where documents are inspected or copies of those
documents are received, their acquisition or review shall be arranged
so as not to unnecessarily disrupt the medical and business
operations of the licensee or of the facility where the records are
kept or used.
(d) Where certified documents are lawfully requested from
licensees in accordance with this section by the Attorney General or
his or her agents or deputies, or investigators of any board, the
documents shall be provided within 10 business days of receipt of the
request, unless the licensee is unable to provide the certified
documents within this time period for good cause, including, but not
limited to, physical inability to access the records in the time
allowed due to illness or travel. Failure to produce requested
certified documents or copies thereof, after being informed of the
required deadline, shall constitute unprofessional conduct. A board
may use its authority to cite and fine a licensee for any violation
of this section. This remedy is in addition to any other authority of
the board to sanction a licensee for a delay in producing requested
records.
(e) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care of
patients.
(f) The licensee shall cooperate with the board in furnishing
information or assistance as may be required, including, but not
limited to, participation in an interview with investigators or
representatives of the board.
(g) This section shall not apply to a licensee who does not have
access to, and control over, certified medical records or other types
of documents that belong to or are controlled by a health facility
or clinic.
SEC. 87. Section 2879.7 is added to the
Business and Professions Code, to read:
2879.7. (a) (1) Notwithstanding any other provision of law, a
licensee who fails or refuses to comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section shall be required
to pay to the board a civil penalty of up to one thousand dollars
($1,000) per day for each day that the documents have not been
produced after the 15th day, up to ten thousand dollars ($10,000),
unless the licensee is unable to provide the documents within this
time period for good cause.
(2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section. Failure to provide
the authorizing patient's certified medical records to the board
within 15 days of receiving the request, authorization, and notice
shall subject the health care facility to a civil penalty, payable to
the healing arts board, of up to one thousand dollars ($1,000) per
day for each day that the documents have not been produced after the
15th day, up to ten thousand dollars ($10,000), unless the health
care facility is unable to provide the documents within this time
period for good cause. This paragraph shall not require health care
facilities to assist the board in obtaining the patient's
authorization. The board shall pay the reasonable costs of copying
the certified medical records, but shall not be required to make that
payment prior to the production of the medical records.
(b) (1) A licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board, shall pay to the board a civil penalty of
up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced after the date by which the court
order requires the documents to be produced, up to ten thousand
dollars ($10,000), unless it is determined that the order is unlawful
or invalid. Any statute of limitations applicable to the filing of
an accusation by the healing arts board shall be tolled during the
period the licensee is out of compliance with the court order and
during any related appeals.
(2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to a board is guilty of a misdemeanor punishable by a
fine payable to the board not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by the board
shall be tolled during the period the licensee is out of compliance
with the court order and during any related appeals.
(3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to the board, that is accompanied by a
notice citing this section and describing the penalties for failure
to comply with this section, shall pay to the board a civil penalty
of up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced, up to ten thousand dollars
($10,000), after the date by which the court order requires the
documents to be produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to the board is guilty of a misdemeanor
punishable by a fine payable to the board not to exceed five thousand
dollars ($5,000). Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. Multiple acts by a
health care facility in violation of subdivision (b) shall be
punishable by a fine not to exceed five thousand dollars ($5,000),
shall be reported to the State Department of Public Health, and shall
be considered as grounds for disciplinary action with respect to
licensure, including suspension or revocation of the license or
certificate.
(d) A failure or refusal of a licensee to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board constitutes unprofessional conduct and is
grounds for suspension or revocation of his or her license.
(e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code). Any civil penalties paid to, or received by, the
board pursuant to this section shall be deposited into the fund
administered by the board.
(f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the licensee's board.
(g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.
(h) If a board complies with Section 1684.1, 2225.5, or 2969, that
board shall not be subject to the requirements of this section.
(i) This section shall not apply to a licensee who does not have
access to, or control over, certified medical records or other types
of documents that belong to or are controlled by a health facility or
clinic.
SEC. 88. SEC. 76. Section 2879.8 is
added to the Business and Professions Code, to read:
2879.8. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information, including the name and license
number, in its possession, custody, or control regarding every
licensee for which whom the board
licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the board.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 2879.7 or 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 89. SEC. 77. Section 2879.10 is
added to the Business and Professions Code, to read:
2879.10. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The healing arts board
shall notify the licensee of the license suspension and of his or her
right to have the issue of penalty heard as provided in this
section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 78. Section 2886.5 is added to the
Business and Professions Code , to read:
2886.5. Notwithstanding any other provision of
law, it is a public offense, punishable by a fine not to exceed one
hundred thousand dollars ($100,000), by imprisonment in a county jail
not to exceed one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
practice licensed vocational nursing to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice licensed vocational nursing or to violate any provision of
this chapter.
SEC. 90. SEC. 79. Section 2960.1 of
the Business and Professions Code is amended to read:
2960.1. (a) Notwithstanding Section 2960, any proposed decision
or decision issued under this chapter in accordance with the
procedures set forth in Chapter 5 (commencing with Section 11500) of
Part 1 of Division 3 of Title 2 of the Government Code, that contains
any finding of fact that the licensee or registrant engaged in any
act of sexual contact, as defined in Section 728, when that act is
with a patient, or with a former patient within two years following
termination of therapy, shall contain an order of revocation. The
revocation shall not be stayed by the administrative law judge.
(b) Except as otherwise provided, any proposed decision or
decision issued under this chapter in accordance with the procedures
set forth in Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2 of the Government Code, that contains any
finding of fact that the licensee has committed a sex offense, shall
contain an order revoking the license. The proposed decision or
decision shall not contain any order staying the revocation of the
licensee.
(c) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 91. SEC. 80. Section
2969.1 is added to the Business and Professions Code, to read:
2969.1. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 92. SEC. 81. Section 2969.2 is
added to the Business and Professions Code, to read:
2969.2. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 93. SEC. 82. Section 2969.3 is
added to the Business and Professions Code, to read:
2969.3. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information, including the name and license
number, in its possession, custody, or control regarding every
licensee for which whom the board
licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the board.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 94. SEC. 83. Section 2969.4 is
added to the Business and Professions Code, to read:
2969.4. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The board shall notify the
licensee of the license suspension and of his or her right to have
the issue of penalty heard as provided in this section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 84. Section 2972 is added to the
Business and Professions Code , to read:
2972. Notwithstanding any other provision of law, it is a public
offense, punishable by a fine not to exceed one hundred thousand
dollars ($100,000), by imprisonment in a county jail not to exceed
one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
practice psychology to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice psychology or to violate any provision of this chapter.
SEC. 95. SEC. 85. Section 3112 is
added to the Business and Professions Code, to read:
3112. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a certificate of registration has
been filed and the registrant has failed to file a notice of defense
or to appear at the hearing and a proposed default decision revoking
the certificate of registration has been issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a certificate of registration has been filed by the
board and the registrant has agreed to the revocation or surrender of
his or her certificate of registration.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 96. SEC. 86. Section 3112.1 is
added to the Business and Professions Code, to read:
3112.1. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a registrant or
applicant in lieu of the issuance of an accusation or statement of
issues against that registrant or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a registrant executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 97. SEC. 87. Section 3112.2 is
added to the Business and Professions Code, to read:
3112.2. (a) The certificate of registration of a registrant shall
be suspended automatically during any time that the registrant is
incarcerated after conviction of a felony, regardless of whether the
conviction has been appealed. The board shall, immediately upon
receipt of the certified copy of the record of conviction, determine
whether the certificate of registration of the registrant has been
automatically suspended by virtue of his or her incarceration, and if
so, the duration of that suspension. The board shall notify the
registrant in writing of the certificate of registration suspension
and of his or her right to elect to have the issue of penalty heard
as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the registrant was convicted was substantially
related to the qualifications, functions, or duties of a registrant,
the board shall suspend the certificate of registration until the
time for appeal has elapsed, if no appeal has been taken, or until
the judgment of conviction has been affirmed on appeal or has
otherwise become final, and until further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a registrant
and no hearing shall be held on this issue. However, upon its own
motion or for good cause shown, the board may decline to impose or
may set aside the suspension when it appears to be in the interest of
justice to do so, with due regard to maintaining the integrity of,
and confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a registrant in
accordance with the statutes and regulations of the board when the
time for appeal has elapsed, the judgment of conviction has been
affirmed on appeal, or an order granting probation is made suspending
the imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
registrant may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
registrant so elects, the issue of penalty shall be heard in the
manner described in subdivision (b) at the hearing to determine
whether the conviction was substantially related to the
qualifications, functions, or duties of a registrant. If the
conviction of a registrant who has made this election is overturned
on appeal, any discipline ordered pursuant to this section shall
automatically cease. Nothing in this subdivision shall prohibit the
board from pursuing disciplinary action based on any cause other than
the overturned conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a certificate of registration issued by
the board shall not apply to proceedings conducted pursuant to this
section.
SEC. 98. SEC. 88. Section 3112.3 is
added to the Business and Professions Code, to read:
3112.3. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the registrant engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the certificate.
(b) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 99. Section 3112.4 is added to the
Business and Professions Code, to read:
3112.4. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the board shall
be subject to the following requirements:
(1) The board shall deny an application by the individual for
registration in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2
of the Government Code.
(2) If the individual is registered under this chapter, the board
shall promptly revoke the certificate of registration of the
individual in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code. The board shall not stay the revocation and
place the certificate of registration on probation.
(3) The board shall not reinstate or reissue the individual's
certificate of registration. The board shall not issue a stay of
certificate of registration denial nor place the certificate of
registration on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a certificate of
registration to an individual who is required to register as a sex
offender shall be applicable.
SEC. 100. Section 3112.5 is added to the
Business and Professions Code, to read:
3112.5. (a) Notwithstanding any other provision of law making a
communication between a registrant and his or her patients a
privileged communication, those provisions shall not apply to
investigations or proceedings conducted by the board. Members of the
board, deputies, employees, agents, the office of the Attorney
General, and representatives of the board shall keep in confidence
during the course of investigations the names of any patients whose
records are reviewed and may not disclose or reveal those names,
except as is necessary during the course of an investigation, unless
and until proceedings are instituted. The authority under this
subdivision to examine records of patients in the office of a
licensee is limited to records of patients who have complained to the
board about that licensee.
(b) Notwithstanding any other provision of law, the Attorney
General and his or her investigative agents, and the board and its
investigators and representatives may inquire into any alleged
violation of the laws under the jurisdiction of the board or any
other federal or state law, regulation, or rule relevant to the
practice regulated by the board, whichever is applicable, and may
inspect documents relevant to those investigations in accordance with
the following procedures:
(1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where a patient provides written
authorization.
(2) Any document relevant to the business operations of a
registrant, and not involving medical records attributable to
identifiable patients, may be inspected and copied where relevant to
an investigation of a licensee.
(c) In all cases where documents are inspected or copies of those
documents are received, their acquisition or review shall be arranged
so as not to unnecessarily disrupt the medical and business
operations of the registrant or of the facility where the records are
kept or used.
(d) Where certified documents are lawfully requested from
registrants in accordance with this section by the Attorney General
or his or her agents or deputies, or investigators of any board, the
documents shall be provided within 10 business days of receipt of the
request, unless the registrant is unable to provide the certified
documents within this time period for good cause, including, but not
limited to, physical inability to access the records in the time
allowed due to illness or travel. Failure to produce requested
certified documents or copies thereof, after being informed of the
required deadline, shall constitute unprofessional conduct. A board
may use its authority to cite and fine a registrant for any violation
of this section. This remedy is in addition to any other authority
of the board to sanction a licensee for a delay in producing
requested records.
(e) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care of
patients.
(f) The registrant shall cooperate with the board in furnishing
information or assistance as may be required, including, but not
limited to, participation in an interview with investigators or
representatives of the board.
(g) This section shall not apply to a licensee who does not have
access to, and control over, certified medical records or other types
of documents that belong to or are controlled by a health facility
or clinic.
SEC. 101. Section 3112.6 is added to the
Business and Professions Code, to read:
3112.6. (a) (1) Notwithstanding any other provision of law, a
registrant who fails or refuses to comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section shall be required
to pay to the board a civil penalty of up to one thousand dollars
($1,000) per day for each day that the documents have not been
produced after the 15th day, up to ten thousand dollars ($10,000),
unless the registrant is unable to provide the documents within this
time period for good cause.
(2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section. Failure to provide
the authorizing patient's certified medical records to the board
within 15 days of receiving the request, authorization, and notice
shall subject the health care facility to a civil penalty, payable to
the board, of up to one thousand dollars ($1,000) per day for each
day that the documents have not been produced after the 15th day, up
to ten thousand dollars ($10,000), unless the health care facility is
unable to provide the documents within this time period for good
cause. This paragraph shall not require health care facilities to
assist the board in obtaining the patient's authorization. The board
shall pay the reasonable costs of copying the certified medical
records, but shall not be required to make that payment prior to the
production of the medical records.
(b) (1) A registrant who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board, shall pay to the board a civil penalty of
up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced after the date by which the
court order requires the documents
to be produced, up to ten thousand dollars ($10,000), unless it is
determined that the order is unlawful or invalid. Any statute of
limitations applicable to the filing of an accusation by the board
shall be tolled during the period the licensee is out of compliance
with the court order and during any related appeals.
(2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to a board is guilty of a misdemeanor punishable by a
fine payable to the board not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by the board
shall be tolled during the period the licensee is out of compliance
with the court order and during any related appeals.
(3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to the board, that is accompanied by a
notice citing this section and describing the penalties for failure
to comply with this section, shall pay to the board a civil penalty
of up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced, up to ten thousand dollars
($10,000), after the date by which the court order requires the
documents to be produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to the board is guilty of a misdemeanor
punishable by a fine payable to the board not to exceed five thousand
dollars ($5,000). Any statute of limitations applicable to the
filing of an accusation by the board against a registrant shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. Multiple acts by a
health care facility in violation of subdivision (b) shall be
punishable by a fine not to exceed five thousand dollars ($5,000),
shall be reported to the State Department of Public Health, and shall
be considered as grounds for disciplinary action with respect to
licensure, including suspension or revocation of the certificate.
(d) A failure or refusal of a registrant to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board constitutes unprofessional conduct and is
grounds for suspension or revocation of his or her certificate.
(e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code). Any civil penalties paid to, or received by, the
board pursuant to this section shall be deposited into the fund
administered by the board.
(f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the licensee's board.
(g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.
(h) If a board complies with Section 1684.1, 2225.5, or 2969, that
board shall not be subject to the requirements of this section.
(i) This section shall not apply to a registrant who does not have
access to, or control over, certified medical records or other types
of documents that belong to or are controlled by a health facility
or clinic.
SEC. 102. SEC. 89. Section 3112.7 is
added to the Business and Professions Code, to read:
3112.7. (a) Notwithstanding any other provision of law, any
employer of a licensee shall report to the board the suspension or
termination for cause, or any resignation in lieu of suspension or
termination for cause, of any licensee in its employ within 15
business days. The report shall not be made until after the
conclusion of the review process specified in Section 52.3 of Title 2
of the California Code of Regulations and Skelly v. State Personnel
Bd. (1975) 15 Cal.3d 194, for public employees. This required
reporting shall not constitute a waiver of confidentiality of medical
records. The information reported or disclosed shall be kept
confidential except as provided in subdivision (c) of Section 800 and
shall not be subject to discovery in civil cases.
(b) The information to be reported by the employer shall include
the name and license number of the licentiate involved, a description
of the facts and circumstances of the suspension or termination for
cause, any resignation in lieu of suspension or termination for
cause, and any other relevant information deemed appropriate by the
employer.
(c) The board shall be entitled to inspect and copy the following
documents in the record for any suspension or termination for cause,
or any resignation in lieu of suspension or termination for cause,
resulting in action that is required to be reported pursuant to this
section:
(1) Any statement for suspension or termination of the registrant.
(2) Any document or exhibits relevant to the suspension or
termination.
(d) If, during the investigation by the board of the cause for the
termination or suspension or resignation of the registrant, it is
found that there has been a violation of existing state or federal
law, the board shall report the violation to the appropriate agency.
(e) For purposes of this section, "suspension or termination for
cause" or "resignation in lieu of suspension or termination for cause"
is defined as resignation, suspension, or termination from
employment for any of the following reasons:
(1) Use of controlled substances or alcohol to the extent that it
impairs the licensee's ability to safely practice.
(2) Unlawful sale of a controlled substance or other prescription
items.
(3) Patient or client abuse, neglect, physical harm, or sexual
contact with a patient or client.
(4) Gross negligence or incompetence.
(5) Theft from a patient or client, any other employee, or the
employer.
(f) As used in this section, the following definitions apply:
(1) "Gross negligence" means a substantial departure from the
standard of care, which, under similar circumstances, would have
ordinarily been exercised by a competent licensee, and which has or
could have resulted in harm to the consumer. An exercise of so slight
a degree of care as to justify the belief that there was a conscious
disregard or indifference for the health, safety, or welfare of the
consumer shall be considered a substantial departure from the
standard of care.
(2) "Incompetence" means the lack of possession of, and the
failure to exercise that degree of learning, skill, care, and
experience ordinarily possessed by, a responsible licensee.
(3) "Willful" means a knowing and intentional violation of a known
legal duty.
(g) (1) Willful failure of an employer to make a report required
by this section is punishable by an administrative fine not to exceed
one hundred thousand dollars ($100,000) per violation.
(2) Any failure of an employer, other than willful failure, to
make a report required by this section is punishable by an
administrative fine not to exceed fifty thousand dollars ($50,000).
(h) The board shall investigate the circumstances underlying any
report received pursuant to this section within 30 days to determine
if an interim suspension order or temporary restraining order should
be issued. The board shall otherwise provide timely disposition of
the reports received pursuant to this section.
(i) The board shall send to the licentiate a copy of the report
along with the reasons for the filing of the report and notice
advising the licentiate of his or her right to submit additional
statements or other information to the board.
(j) Pursuant to Section 43.8 of the Civil Code, no person shall
incur any civil penalty as a result of making any report required by
this article.
(k) No report is required under this section where a report of the
action taken is already required under Section 805.
SEC. 103. SEC. 90. Section 3112.8 is
added to the Business and Professions Code, to read:
3112.8. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information, including the name and license
number, in its possession, custody, or control regarding every
registrant for which whom the board
licenses:
(a) With regard to the status of every registrant, whether or not
the registrant or former registrant is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a registrant, whether or
not the registrant or former registrant has been subject to
discipline by the board or by the board of another state or
jurisdiction, as described in Section 803.1.
(c) Any felony conviction of a registrant reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the board.
(f) Any hospital disciplinary action imposed against a registrant
that resulted in the termination or revocation of a registrant's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 3112.6 or 805.
(g) Any misdemeanor conviction of a registrant that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 104. SEC. 91. Section 3112.9 is
added to the Business and Professions Code, to read:
3112.9. (a) Unless otherwise provided, if a registrant possesses
a license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The board shall notify the
licensee of the license suspension and of his or her right to have
the issue of penalty heard as provided in this section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the certificate or
authority to practice is overturned on appeal, any discipline ordered
pursuant to this section shall automatically cease. Upon a showing
to the administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a registrant who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a registrant's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a registrant whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the registrant by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 92. Section 3123 is added to the
Business and Professions Code , to read:
3123. Notwithstanding any other provision of law, it is a
public offense, punishable by a fine not to exceed one hundred
thousand dollars ($100,000), by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
practice optometry to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice optometry or to violate any provision of this chapter.
SEC. 105. SEC. 93. Section 3405 is
added to the Business and Professions Code, to read:
3405. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 106. SEC. 94. Section 3405.1 is
added to the Business and Professions Code, to read:
3405.1. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters a settlement pursuant to this section is
not precluded from filing a petition, in the timeframe permitted by
law, to modify the terms of the settlement or petition for early
termination of probation, if probation is part of the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 107. SEC. 95. Section 3405.2 is
added to the Business and Professions Code, to read:
3405.2. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The board shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The board shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the issue
of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the board
shall suspend the license until the time for appeal has elapsed, if
no appeal has been taken, or until the judgment of conviction has
been affirmed on appeal or has otherwise become final, and until
further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the board may decline to impose or may set
aside the suspension when it appears to be in the interest of justice
to do so, with due regard to maintaining the integrity of, and
confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the board when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the board from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 108. SEC. 96. Section 3405.3 is
added to the Business and Professions Code, to read:
3405.3. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 109. Section 3405.4 is added to the
Business and Professions Code, to read:
3405.4. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the board shall
be subject to the following requirements:
(1) The board shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the board
shall promptly revoke the license of the individual in accordance
with the procedures set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
board shall not stay the revocation and place the license on
probation.
(3) The board shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any
administrative adjudication proceeding under Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2 of the
Government Code that is fully adjudicated prior to January 1, 2008. A
petition for reinstatement of a revoked or surrendered license shall
be considered a new proceeding for purposes of this paragraph, and
the prohibition against reinstating a license to an individual who is
required to register as a sex offender shall be applicable.
SEC. 110. Section 3405.5 is added to the
Business and Professions Code, to read:
3405.5. (a) Notwithstanding any other provision of law making a
communication between a licensee and his or her patients a privileged
communication, those provisions shall not apply to investigations or
proceedings conducted by the board. Members of the board, deputies,
employees, agents, the office of the Attorney General, and
representatives of the board shall keep in confidence during the
course of investigations the names of any patients whose records are
reviewed and may not disclose or reveal those names, except as is
necessary during the course of an investigation, unless and until
proceedings are instituted. The authority under this subdivision to
examine records of patients in the office of a licensee is limited to
records of patients who have complained to the board about that
licensee.
(b) Notwithstanding any other provision of law, the Attorney
General and his or her investigative agents, and the board and its
investigators and representatives may inquire into any alleged
violation of the laws under the jurisdiction of the board or any
other federal or state law, regulation, or rule relevant to the
practice regulated by the board, whichever is applicable, and may
inspect documents relevant to those investigations in accordance with
the following procedures:
(1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where a patient provides written
authorization.
(2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied where relevant to
an investigation of a licensee.
(c) In all cases where documents are inspected or copies of those
documents are received, their acquisition or review shall be arranged
so as not to unnecessarily disrupt the medical and business
operations of the licensee or of the facility where the records are
kept or used.
(d) Where certified documents are lawfully requested from
licensees in accordance with this section by the Attorney General or
his or her agents or deputies, or investigators of any board, the
documents shall be provided within 10 business days of receipt of the
request, unless the licensee is unable to provide the certified
documents within this time period for good cause, including, but not
limited to, physical inability to access the records in the time
allowed due to illness or travel. Failure to produce requested
certified documents or copies thereof, after being informed of the
required deadline, shall constitute unprofessional conduct. A board
may use its authority to cite and fine a licensee for any violation
of this section. This remedy is in addition to any other authority of
the board to sanction a licensee for a delay in producing requested
records.
(e) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care of
patients.
(f) The licensee shall cooperate with the board in furnishing
information or assistance as may be required, including, but not
limited to, participation in an interview with investigators or
representatives of the board.
(g) This section shall not apply to a licensee who does not have
access to, and control over, certified medical records or other types
of documents that belong to or are controlled by a health facility
or clinic.
SEC. 111. Section 3405.6 is added to the
Business and Professions Code, to read:
3405.6. (a) (1) Notwithstanding any other provision of law, a
licensee who fails or refuses to comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to the board
together with a notice citing this section and describing the
penalties for failure to comply with this section shall be required
to pay to the board a civil penalty of up to one thousand dollars
($1,000) per day for each day that the documents have not been
produced after the 15th day, up to ten thousand dollars ($10,000),
unless the licensee is unable to provide the documents within this
time period for good cause.
(2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to the board
together with a notice citing this section and describing the
penalties for failure to comply with this section. Failure to provide
the authorizing patient's certified medical records to the board
within 15 days of receiving the request, authorization, and notice
shall subject the health care facility to a civil penalty, payable to
the board, of up to one thousand dollars ($1,000) per day for each
day that the documents have not been produced after the 15th day, up
to ten thousand dollars ($10,000), unless the health care facility is
unable to provide the documents within this time period for good
cause. This paragraph shall not require health care facilities to
assist a board in obtaining the patient's authorization. The board
shall pay the reasonable costs of copying the certified medical
records, but shall not be required to make that payment prior to the
production of the medical records.
(b) (1) A licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board, shall pay to the board a civil penalty of
up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced after the date by which the court
order requires the documents to be produced, up to ten thousand
dollars ($10,000), unless it is determined that the order is unlawful
or invalid. Any statute of limitations applicable to the filing of
an accusation by the board shall be tolled during the period the
licensee is out of compliance with the court order and during any
related appeals.
(2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to a board is guilty of a misdemeanor punishable by a
fine payable to the board not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by the board
shall be tolled during the period the licensee is out of compliance
with the court order and during any related appeals.
(3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to the board, that is accompanied by a
notice citing this section and describing the penalties for failure
to comply with this section, shall pay to the board a civil penalty
of up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced, up to ten thousand dollars
($10,000), after the date by which the court order requires the
documents to be produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to the board is guilty of a misdemeanor
punishable by a fine payable to the board not to exceed five thousand
dollars ($5,000). Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. Multiple acts by a
health care facility in violation of subdivision (b) shall be
punishable by a fine not to exceed five thousand dollars ($5,000),
shall be reported to the State Department of Public Health, and shall
be considered as grounds for disciplinary action with respect to
licensure, including suspension or revocation of the license or
certificate.
(d) A failure or refusal of a licensee to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board constitutes unprofessional conduct and is
grounds for suspension or revocation of his or her license.
(e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code). Any civil penalties paid to, or received by, a
board pursuant to this section shall be deposited into the fund
administered by the board.
(f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the licensee's board.
(g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.
(h) If a board complies with Section 1684.1, 2225.5, or 2969, that
board shall not be subject to the requirements of this section.
(i) This section shall not apply to a licensee who does not have
access to, or control over, certified medical records.
SEC. 112. SEC. 97. Section 3405.7 is
added to the Business and Professions Code, to read:
3405.7. (a) Notwithstanding any other provision of law, any
employer of a licensee shall report to the board the suspension or
termination for cause, or any resignation in lieu of suspension or
termination for cause, of any licensee in its employ within 15
business days. The report shall not be made until after the
conclusion of the review process specified in Section 52.3 of Title 2
of the California Code of Regulations and Skelly v. State Personnel
Bd. (1975) 15 Cal.3d 194, for public employees. This required
reporting shall not constitute a waiver of confidentiality of medical
records. The information reported or disclosed shall be kept
confidential except as provided in subdivision (c) of Section 800 and
shall not be subject to discovery in civil cases.
(b) The information to be reported by the employer shall include
the name and license number of the licentiate involved, a description
of the facts and circumstances of the suspension or termination for
cause, any resignation in lieu of suspension or termination for
cause, and any other relevant information deemed appropriate by the
employer.
(c) The board shall be entitled to inspect and copy the following
documents in the record for any suspension or termination for cause,
or any resignation in lieu of suspension or termination for cause,
resulting in action that is required to be reported pursuant to this
section:
(1) Any statement for suspension or termination of the licensee.
(2) Any document or exhibits relevant to the suspension or
termination.
(d) If, during the investigation by the board of the cause for the
termination or suspension or resignation of the licensee, it is
found that there has been a violation of existing state or federal
law, the board shall report the violation to the appropriate agency.
(e) For purposes of this section, "suspension or termination for
cause" or "resignation in lieu of suspension or termination for cause"
is defined as resignation, suspension, or termination from
employment for any of the following reasons:
(1) Use of controlled substances or alcohol to the extent that it
impairs the licensee's ability to safely practice.
(2) Unlawful sale of a controlled substance or other prescription
items.
(3) Patient or client abuse, neglect, physical harm, or sexual
contact with a patient or client.
(4) Gross negligence or incompetence.
(5) Theft from a patient or client, any other employee, or the
employer.
(f) As used in this section, the following definitions apply:
(1) "Gross negligence" means a substantial departure from the
standard of care, which, under similar circumstances, would have
ordinarily been exercised by a competent licensee, and which has or
could have resulted in harm to the consumer. An exercise of so slight
a degree of care as to justify the belief that there was a conscious
disregard or indifference for the health, safety, or welfare of the
consumer shall be considered a substantial departure from the
standard of care.
(2) "Incompetence" means the lack of possession of, and the
failure to exercise that degree of learning, skill, care, and
experience ordinarily possessed by, a responsible licensee.
(3) "Willful" means a knowing and intentional violation of a known
legal duty.
(g) (1) Willful failure of an employer to make a report required
by this section is punishable by an administrative fine not to exceed
one hundred thousand dollars ($100,000) per violation.
(2) Any failure of an employer, other than willful failure, to
make a report required by this section is punishable by an
administrative fine not to exceed fifty thousand dollars ($50,000).
(h) The board shall investigate the circumstances underlying any
report received pursuant to this section within 30 days to determine
if an interim suspension order or temporary restraining order should
be issued. The board shall otherwise provide timely disposition of
the reports received pursuant to this section.
(i) The board shall send to the licentiate a copy of the report
along with the reasons for the filing of the report and notice
advising the licentiate of his or her right to submit additional
statements or other information to the board.
(j) Pursuant to Section 43.8 of the Civil Code, no person shall
incur any civil penalty as a result of making any report required by
this article.
(k) No report is required under this section where a report of the
action taken is already required under Section 805.
SEC. 113. SEC. 98. Section 3405.8 is
added to the Business and Professions Code, to read:
3405.8. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information, including the name and license
number, in its possession, custody, or control regarding every
licensee for which whom the board
licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the healing arts board.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 3405.6 or 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 114. SEC. 99. Section 3405.9 is
added to the Business and Professions Code, to read:
3405.9. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The healing arts board
shall notify the licensee of the license suspension and of his or her
right to have the issue of penalty heard as provided in this
section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 115. SEC. 100. Section 3531.1 is
added to the Business and Professions Code, to read:
3531.1. (a) The committee may delegate to its executive officer
the authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The committee may delegate to its executive officer the
authority to adopt a proposed settlement agreement where an
administrative action to revoke a license has been filed by the
committee and the licensee has agreed to the revocation or surrender
of his or her license.
(c) The executive officer shall, at scheduled committee meetings,
report to the committee the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 116. SEC. 101. Section 3531.2
is added to the Business and Professions Code, to read:
3531.2. (a) Notwithstanding Section 11415.60 of the Government
Code, the committee may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable committee's Internet Web site. Any
settlement against an applicant executed pursuant to this section
shall be considered a public record and shall be posted on the
applicable committee's Internet Web site.
(e) The executive officer shall, at scheduled committee meetings,
report to the committee the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 117. SEC. 102. Section 3531.3
is added to the Business and Professions Code, to read:
3531.3. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The committee shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The committee shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the
issue of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the
committee shall suspend the license until the time for appeal has
elapsed, if no appeal has been taken, or until the judgment of
conviction has been affirmed on appeal or has otherwise become final,
and until further order of the committee.
(c) Notwithstanding
subdivision (b), a conviction of a charge of violating any federal
statute or regulation or any statute or regulation of this state,
regulating dangerous drugs or controlled substances, or a conviction
of Section 187, 261, 262, or 288 of the Penal Code, shall be
conclusively presumed to be substantially related to the
qualifications, functions, or duties of a licensee and no hearing
shall be held on this issue. However, upon its own motion or for good
cause shown, the committee may decline to impose or may set aside
the suspension when it appears to be in the interest of justice to do
so, with due regard to maintaining the integrity of, and confidence
in, the practice regulated by the committee.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the committee when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the committee from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the committee shall
not apply to proceedings conducted pursuant to this section.
SEC. 118. SEC. 103. Section 3531.4 is
added to the Business and Professions Code, to read:
3531.4. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 119. Section 3531.5 is added to the
Business and Professions Code, to read:
3531.5. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the committee
shall be subject to the following requirements:
(1) The committee shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the
committee shall promptly revoke the license of the individual in
accordance with the procedures set forth in Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2 of the
Government Code. The committee shall not stay the revocation and
place the license on probation.
(3) The committee shall not reinstate or reissue the individual's
license. The committee shall not issue a stay of license denial nor
place the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the committee from
exercising its discretion to discipline a licensee under any other
provision of state law based upon the licensee's conviction under
Section 314 of the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 120. Section 3531.6 is added to the
Business and Professions Code, to read:
3531.6. (a) Notwithstanding any other provision of law making a
communication between a licensee and his or her patients a privileged
communication, those provisions shall not apply to investigations or
proceedings conducted by the committee. Members of the committee,
deputies, employees, agents, the office of the Attorney General, and
representatives of the committee shall keep in confidence during the
course of investigations the names of any patients whose records are
reviewed and may not disclose or reveal those names, except as is
necessary during the course of an investigation, unless and until
proceedings are instituted. The authority under this subdivision to
examine records of patients in the office of a licensee is limited to
records of patients who have complained to the committee about that
licensee.
(b) Notwithstanding any other provision of law, the Attorney
General and his or her investigative agents, and the committee and
its investigators and representatives may inquire into any alleged
violation of the laws under the jurisdiction of the committee or any
other federal or state law, regulation, or rule relevant to the
practice regulated by the committee, whichever is applicable, and may
inspect documents relevant to those investigations in accordance
with the following procedures:
(1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where a patient provides written
authorization.
(2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied where relevant to
an investigation of a licensee.
(c) In all cases where documents are inspected or copies of those
documents are received, their acquisition or review shall be arranged
so as not to unnecessarily disrupt the medical and business
operations of the licensee or of the facility where the records are
kept or used.
(d) Where certified documents are lawfully requested from
licensees in accordance with this section by the Attorney General or
his or her agents or deputies, or investigators of the committee, the
documents shall be provided within 10 business days of receipt of
the request, unless the licensee is unable to provide the certified
documents within this time period for good cause, including, but not
limited to, physical inability to access the records in the time
allowed due to illness or travel. Failure to produce requested
certified documents or copies thereof, after being informed of the
required deadline, shall constitute unprofessional conduct. The
committee may use its authority to cite and fine a licensee for any
violation of this section. This remedy is in addition to any other
authority of the committee to sanction a licensee for a delay in
producing requested records.
(e) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care of
patients.
(f) The licensee shall cooperate with the committee in furnishing
information or assistance as may be required, including, but not
limited to, participation in an interview with investigators or
representatives of the committee.
(g) This section shall not apply to a licensee who does not have
access to, and control over, certified medical records or other types
of documents that belong to or are controlled by a health facility
or clinic.
SEC. 121. Section 3531.7 is added to the
Business and Professions Code, to read:
3531.7. (a) (1) Notwithstanding any other provision of law, a
licensee who fails or refuses to comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to the
committee together with a notice citing this section and describing
the penalties for failure to comply with this section shall be
required to pay to the committee a civil penalty of up to one
thousand dollars ($1,000) per day for each day that the documents
have not been produced after the 15th day, up to ten thousand dollars
($10,000), unless the licensee is unable to provide the documents
within this time period for good cause.
(2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to the
committee together with a notice citing this section and describing
the penalties for failure to comply with this section. Failure to
provide the authorizing patient's certified medical records to the
committee within 15 days of receiving the request, authorization, and
notice shall subject the health care facility to a civil penalty,
payable to the committee, of up to one thousand dollars ($1,000) per
day for each day that the documents have not been produced after the
15th day, up to ten thousand dollars ($10,000), unless the health
care facility is unable to provide the documents within this time
period for good cause. This paragraph shall not require health care
facilities to assist the committee in obtaining the patient's
authorization. The committee shall pay the reasonable costs of
copying the certified medical records, but shall not be required to
make that payment prior to the production of the medical records.
(b) (1) A licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the committee, shall pay to the committee a civil
penalty of up to one thousand dollars ($1,000) per day for each day
that the documents have not been produced after the date by which the
court order requires the documents to be produced, up to ten
thousand dollars ($10,000), unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the committee shall be tolled during the
period the licensee is out of compliance with the court order and
during any related appeals.
(2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the committee is guilty of a misdemeanor punishable by
a fine payable to the committee not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by the
committee shall be tolled during the period the licensee is out of
compliance with the court order and during any related appeals.
(3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to the committee, that is accompanied by a
notice citing this section and describing the penalties for failure
to comply with this section, shall pay to the committee a civil
penalty of up to one thousand dollars ($1,000) per day for each day
that the documents have not been produced, up to ten thousand dollars
($10,000), after the date by which the court order requires the
documents to be produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the committee against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to the committee is guilty of a misdemeanor
punishable by a fine payable to the committee not to exceed five
thousand dollars ($5,000). Any statute of limitations applicable to
the filing of an accusation by the committee against a licensee shall
be tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. Multiple acts by a
health care facility in violation of subdivision (b) shall be
punishable by a fine not to exceed five thousand dollars ($5,000),
shall be reported to the State Department of Public Health, and shall
be considered as grounds for disciplinary action with respect to
licensure, including suspension or revocation of the license or
certificate.
(d) A failure or refusal of a licensee to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the committee constitutes unprofessional conduct and
is grounds for suspension or revocation of his or her license.
(e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code). Any civil penalties paid to, or received by, the
committee pursuant to this section shall be deposited into the fund
administered by the committee.
(f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the committee.
(g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.
(h) If the committee complies with Section 1684.1, 2225.5, or
2969, the committee shall not be subject to the requirements of this
section.
(i) This section shall not apply to a licensee who does not have
access to, or control over, certified medical records or other types
of documents that belong to or are controlled by a health facility or
clinic.
SEC. 122. SEC. 104. Section 3531.8
is added to the Business and Professions Code, to read:
3531.8. (a) Notwithstanding any other provision of law, any
employer of a licensee shall report to the committee the suspension
or termination for cause, or any resignation in lieu of suspension or
termination for cause, of any licensee in its employ within 15
business days. The report shall not be made until after the
conclusion of the review process specified in Section 52.3 of Title 2
of the California Code of Regulations and Skelly v. State Personnel
Bd. (1975) 15 Cal.3d 194, for public employees. This required
reporting shall not constitute a waiver of confidentiality of medical
records. The information reported or disclosed shall be kept
confidential except as provided in subdivision (c) of Section 800 and
shall not be subject to discovery in civil cases.
(b) The information to be reported by the employer shall include
the name and license number of the licentiate involved, a description
of the facts and circumstances of the suspension or termination for
cause, any resignation in lieu of suspension or termination for
cause, and any other relevant information deemed appropriate by the
employer.
(c) The committee shall be entitled to inspect and copy the
following documents in the record for any suspension or termination
for cause, or any resignation in lieu of suspension or termination
for cause, resulting in action that is required to be reported
pursuant to this section:
(1) Any statement for suspension or termination of the licensee.
(2) Any document or exhibits relevant to the suspension or
termination.
(d) If, during the investigation by the committee of the cause for
the termination or suspension or resignation of the licensee, it is
found that there has been a violation of existing state or federal
law, the committee shall report the violation to the appropriate
agency.
(e) For purposes of this section, "suspension or termination for
cause" or "resignation in lieu of suspension or termination for cause"
is defined as resignation, suspension, or termination from
employment for any of the following reasons:
(1) Use of controlled substances or alcohol to the extent that it
impairs the licensee's ability to safely practice.
(2) Unlawful sale of a controlled substance or other prescription
items.
(3) Patient or client abuse, neglect, physical harm, or sexual
contact with a patient or client.
(4) Gross negligence or incompetence.
(5) Theft from a patient or client, any other employee, or the
employer.
(f) As used in this section, the following definitions apply:
(1) "Gross negligence" means a substantial departure from the
standard of care, which, under similar circumstances, would have
ordinarily been exercised by a competent licensee, and which has or
could have resulted in harm to the consumer. An exercise of so slight
a degree of care as to justify the belief that there was a conscious
disregard or indifference for the health, safety, or welfare of the
consumer shall be considered a substantial departure from the
standard of care.
(2) "Incompetence" means the lack of possession of, and the
failure to exercise that degree of learning, skill, care, and
experience ordinarily possessed by, a responsible licensee.
(3) "Willful" means a knowing and intentional violation of a known
legal duty.
(g) (1) Willful failure of an employer to make a report required
by this section is punishable by an administrative fine not to exceed
one hundred thousand dollars ($100,000) per violation.
(2) Any failure of an employer, other than willful failure, to
make a report required by this section is punishable by an
administrative fine not to exceed fifty thousand dollars ($50,000).
(h) The committee shall investigate the circumstances underlying
any report received pursuant to this section within 30 days to
determine if an interim suspension order or temporary restraining
order should be issued. The committee shall otherwise provide timely
disposition of the reports received pursuant to this section.
(i) The committee shall send to the licentiate a copy of the
report along with the reasons for the filing of the report and notice
advising the licentiate of his or her right to submit additional
statements or other information to the committee.
(j) Pursuant to Section 43.8 of the Civil Code, no person shall
incur any civil penalty as a result of making any report required by
this article.
(k) No report is required under this section where a report of the
action taken is already required under Section 805.
SEC. 123. SEC. 105. Section 3531.9
is added to the Business and Professions Code, to read:
3531.9. Unless otherwise provided, on or after July 1,
2013 2014 , the committee shall post on its
Internet Web site the following information, including the name and
license number, in its possession, custody, or control regarding
every licensee for which whom the
committee licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the committee of another state or jurisdiction, as
described in Section 803.1.
(c) Any felony conviction of a licensee reported to the committee.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the committee unless an
appeal of that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the committee.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 3531.7 or 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the committee and shall be adopted
by regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 124. SEC. 106. Section 3531.10
is added to the Business and Professions Code, to read:
3531.10. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal
government and that license or authority is
suspended or revoked outright, the California license of the licensee
shall be suspended automatically for the duration of the suspension
or revocation, unless terminated or rescinded as provided in
subdivision (c). The committee shall notify the licensee of the
license suspension and of his or her right to have the issue of
penalty heard as provided in this section.
(b) Upon its own motion or for good cause shown, the committee may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the committee, in the
discretion of the committee. A licensee may request a hearing on the
penalty and that hearing shall be held within 90 days from the date
of the request. If the order suspending or revoking the license or
authority to practice is overturned on appeal, any discipline ordered
pursuant to this section shall automatically cease. Upon a showing
to the administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) If the committee complies with Section 2310 it shall not be
subject to the requirements of this section.
SEC. 107. Section 3533.5 is added to the
Business and Professions Code , to read:
3533.5. Notwithstanding any other provision of law, it is a
public offense, punishable by a fine not to exceed one hundred
thousand dollars ($100,000), by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid physician
assistant license to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a physician
assistant license or to violate any provision of this chapter.
SEC. 108. Section 3534 of the Business
and Professions Code is amended to read:
3534. (a) It is the intent of the Legislature that the examining
committee shall seek ways and means to identify and rehabilitate
physician assistants whose competency is impaired due to abuse of
dangerous drugs or alcohol so that they may be treated and returned
to the practice of medicine in a manner which will not endanger the
public health and safety.
(b) It is the intent of the Legislature, through a request in 2013
from the Joint Legislative Audit Committee, that the Bureau of State
Audits conduct a thorough performance audit of the examining
committee's diversion program to evaluate the effectiveness and
efficiency of the program, and make recommendations regarding the
continuation of the program and any changes or reforms required to
ensure that physician assistants participating in the program are
appropriately monitored and that the public is protected from
physician assistants who are impaired due to alcohol or drug abuse or
mental or physical illness. The audit shall be completed by January
1, 2014. The board and its staff shall cooperate with the audit, and
the board shall provide data, information, and case files as
requested by the auditor to perform all of his or her duties. The
provision of confidential data, information, and case files by the
board to the auditor shall not constitute a waiver of any exemption
from disclosure or discovery or of any confidentiality protection or
privilege otherwise provided by law that is applicable to the data,
information, or case files.
(c) It is the intent of the Legislature that the audit be paid for
with funds from the Physician Assistant Fund.
SEC. 109. Section 3664.5 is added to the
Business and Professions Code , to read:
3664.5. Notwithstanding any other provision of law, it is a
public offense, punishable by a fine not to exceed one hundred
thousand dollars ($100,000), by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
practice naturopathic medicine to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice naturopathic medicine or to violate any provision of this
chapter.
SEC. 125. SEC. 110. Section 3665 is
added to the Business and Professions Code, to read:
3665. (a) The committee may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The committee may delegate to its executive officer the
authority to adopt a proposed settlement agreement where an
administrative action to revoke a license has been filed by the
committee and the licensee has agreed to the revocation or surrender
of his or her license.
(c) The executive officer shall, at scheduled committee meetings,
report to the committee the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 126. SEC. 111. Section 3665.1
is added to the Business and Professions Code, to read:
3665.1. (a) Notwithstanding Section 11415.60 of the Government
Code, the committee may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable committee's Internet Web site. Any
settlement against an applicant executed pursuant to this section
shall be considered a public record and shall be posted on the
applicable committee's Internet Web site.
(e) The executive officer shall, at scheduled committee meetings,
report to the committee the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 127. SEC. 112. Section 3665.2
is added to the Business and Professions Code, to read:
3665.2. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The committee shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The committee shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the
issue of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the
committee shall suspend the license until the time for appeal has
elapsed, if no appeal has been taken, or until the judgment of
conviction has been affirmed on appeal or has otherwise become final,
and until further order of the committee.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the committee may decline to impose or may
set aside the suspension when it appears to be in the interest of
justice to do so, with due regard to maintaining the integrity of,
and confidence in, the practice regulated by the committee.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the committee when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the board from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 128. SEC. 113. Section 3665.3
is added to the Business and Professions Code, to read:
3665.3. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 129. Section 3665.4 is added to the
Business and Professions Code, to read:
3665.4. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the committee
shall be subject to the following requirements:
(1) The committee shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the
committee shall promptly revoke the license of the individual in
accordance with the procedures set forth in Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2 of the
Government Code. The committee shall not stay the revocation and
place the license on probation.
(3) The committee shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the committee from
exercising its discretion to discipline a licensee under any other
provision of state law based upon the licensee's conviction under
Section 314 of the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 130. Section 3665.5 is added to the
Business and Professions Code, to read:
3665.5. (a) Notwithstanding any other provision of law making a
communication between a licensee and his or her patients a privileged
communication, those provisions shall not apply to investigations or
proceedings conducted by the board. Members of the board, deputies,
employees, agents, the office of the Attorney General, and
representatives of the board shall keep in confidence during the
course of investigations the names of any patients whose records are
reviewed and may not disclose or reveal those names, except as is
necessary during the course of an investigation, unless and until
proceedings are instituted. The authority under this subdivision to
examine records of patients in the office of a licensee is limited to
records of patients who have complained to the board about that
licensee.
(b) Notwithstanding any other provision of law, the Attorney
General and his or her investigative agents, and the committee and
its investigators and representatives may inquire into any alleged
violation of the laws under the jurisdiction of the committee or any
other federal or state law, regulation, or rule relevant to the
practice regulated by the committee, whichever is applicable, and may
inspect documents relevant to those investigations in accordance
with the following procedures:
(1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where a patient provides written
authorization.
(2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied where relevant to
an investigation of a licensee.
(c) In all cases where documents are inspected or copies of those
documents are received, their acquisition or review shall be arranged
so as not to unnecessarily disrupt the medical and business
operations of the licensee or of the facility where the records are
kept or used.
(d) Where certified documents are lawfully requested from
licensees in accordance with this section by the Attorney General or
his or her agents or deputies, or investigators of any board, the
documents shall be provided within 10 business days of receipt of the
request, unless the licensee is unable to provide the certified
documents within this time period for good cause, including, but not
limited to, physical inability to access the records in the time
allowed due to illness or travel. Failure to produce requested
certified documents or copies thereof, after being informed of the
required deadline, shall constitute unprofessional conduct. The
committee may use its authority to cite and fine a licensee for any
violation of this section. This remedy is in addition to any other
authority of the committee to sanction a licensee for a delay in
producing requested records.
(e) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care of
patients.
(f) The licensee shall cooperate with the board in furnishing
information or assistance as may be required, including, but not
limited to, participation in an interview with investigators or
representatives of the committee.
(g) This section shall not apply to a licensee who does not have
access to, and control over, certified medical records or other types
of documents that belong to or are controlled by a health facility
or clinic.
SEC. 131. Section 3665.6 is added to the
Business and Professions Code, to read:
3665.6. (a) (1) Notwithstanding any other provision of law, a
licensee who fails or refuses to comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to the
committee together with a notice citing this section and describing
the penalties for failure to comply with this section shall be
required to pay to the board a civil penalty of up to one thousand
dollars ($1,000) per day for each day that the documents have not
been produced after the 15th day, up to ten thousand dollars
($10,000), unless the licensee is unable to provide the documents
within this time period for good cause.
(2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to the
committee together with a notice citing this section and describing
the penalties for failure to comply with this section. Failure to
provide the authorizing patient's certified medical records to the
board within 15 days of receiving the request, authorization, and
notice shall subject the health care facility to a civil penalty,
payable to the committee, of up to one thousand dollars ($1,000) per
day for each day that the documents have not been produced after the
15th day, up to ten thousand dollars ($10,000), unless the health
care facility is unable to provide the documents within this time
period for good cause. This paragraph shall not require health care
facilities to assist the committee in obtaining the patient's
authorization. The committee shall pay the reasonable costs of
copying the certified medical records, but shall not be required to
make that payment prior to the production of the medical records.
(b) (1) A licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the committee, shall pay to the committee a civil
penalty of up to one thousand dollars ($1,000) per day for each day
that the documents have not been produced after the date by which the
court order requires the documents to be produced, up to ten
thousand dollars ($10,000), unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the committee shall be tolled during the
period the licensee is out of compliance with the court order and
during any related appeals.
(2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to a board is guilty of a misdemeanor punishable by a
fine payable to the committee not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by the
committee shall be tolled during the period the licensee is out of
compliance with the court order and during any related appeals.
(3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to the committee, that is accompanied by a
notice citing this section and describing the penalties for failure
to comply with this section, shall pay to the committee a civil
penalty of up to one thousand dollars ($1,000) per day for each day
that the documents have not been produced, up to ten thousand dollars
($10,000), after the date by which the court order requires the
documents to be produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the committee against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to a healing arts board is guilty of a
misdemeanor punishable by a fine payable to the committee not to
exceed five thousand dollars ($5,000). Any statute of limitations
applicable to the filing of an accusation by the committee against a
licensee shall be tolled during the period the health care facility
is out of compliance with the court order and during any related
appeals.
(c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county
jail not exceeding six months, or by both that fine
and imprisonment. Multiple acts by a health care facility in
violation of subdivision (b) shall be punishable by a fine not to
exceed five thousand dollars ($5,000), shall be reported to the State
Department of Public Health, and shall be considered as grounds for
disciplinary action with respect to licensure, including suspension
or revocation of the license or certificate.
(d) A failure or refusal of a licensee to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the committee constitutes unprofessional conduct and
is grounds for suspension or revocation of his or her license.
(e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code). Any civil penalties paid to, or received by, the
committee pursuant to this section shall be deposited into the fund
administered by the committee.
(f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the licensee's board.
(g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.
(h) If the committee complies with Section 1684.1, 2225.5, or
2969, the committee shall not be subject to the requirements of this
section.
(i) This section shall not apply to a licensee who does not have
access to, or control over, certified medical records or other types
of documents that belong to or are controlled by a health facility or
clinic.
SEC. 132. SEC. 114. Section 3665.7
is added to the Business and Professions Code, to read:
3665.7. (a) Notwithstanding any other provision of law, any
employer of a licensee shall report to the committee the suspension
or termination for cause, or any resignation in lieu of suspension or
termination for cause, of any licensee in its employ within 15
business days. The report shall not be made until after the
conclusion of the review process specified in Section 52.3 of Title 2
of the California Code of Regulations and Skelly v. State Personnel
Bd. (1975) 15 Cal.3d 194, for public employees. This required
reporting shall not constitute a waiver of confidentiality of medical
records. The information reported or disclosed shall be kept
confidential except as provided in subdivision (c) of Section 800 and
shall not be subject to discovery in civil cases.
(b) The information to be reported by the employer shall include
the name and license number of the licentiate involved, a description
of the facts and circumstances of the suspension or termination for
cause, any resignation in lieu of suspension or termination for
cause, and any other relevant information deemed appropriate by the
employer.
(c) The committee shall be entitled to inspect and copy the
following documents in the record for any suspension or termination
for cause, or any resignation in lieu of suspension or termination
for cause, resulting in action that is required to be reported
pursuant to this section:
(1) Any statement for suspension or termination of the licensee.
(2) Any document or exhibits relevant to the suspension or
termination.
(d) If, during the investigation by the committee of the cause for
the termination or suspension or resignation of the licensee, it is
found that there has been a violation of existing state or federal
law, the committee shall report the violation to the appropriate
agency.
(e) For purposes of this section, "suspension or termination for
cause" or "resignation in lieu of suspension or termination for cause"
is defined as resignation, suspension, or termination from
employment for any of the following reasons:
(1) Use of controlled substances or alcohol to the extent that it
impairs the licensee's ability to safely practice.
(2) Unlawful sale of a controlled substance or other prescription
items.
(3) Patient or client abuse, neglect, physical harm, or sexual
contact with a patient or client.
(4) Gross negligence or incompetence.
(5) Theft from a patient or client, any other employee, or the
employer.
(f) As used in this section, the following definitions apply:
(1) "Gross negligence" means a substantial departure from the
standard of care, which, under similar circumstances, would have
ordinarily been exercised by a competent licensee, and which has or
could have resulted in harm to the consumer. An exercise of so slight
a degree of care as to justify the belief that there was a conscious
disregard or indifference for the health, safety, or welfare of the
consumer shall be considered a substantial departure from the
standard of care.
(2) "Incompetence" means the lack of possession of, and the
failure to exercise that degree of learning, skill, care, and
experience ordinarily possessed by, a responsible licensee.
(3) "Willful" means a knowing and intentional violation of a known
legal duty.
(g) (1) Willful failure of an employer to make a report required
by this section is punishable by an administrative fine not to exceed
one hundred thousand dollars ($100,000) per violation.
(2) Any failure of an employer, other than willful failure, to
make a report required by this section is punishable by an
administrative fine not to exceed fifty thousand dollars ($50,000).
(h) The committee shall investigate the circumstances underlying
any report received pursuant to this section within 30 days to
determine if an interim suspension order or temporary restraining
order should be issued. The board shall otherwise provide timely
disposition of the reports received pursuant to this section.
(i) The committee shall send to the licentiate a copy of the
report along with the reasons for the filing of the report and notice
advising the licentiate of his or her right to submit additional
statements or other information to the board.
(j) Pursuant to Section 43.8 of the Civil Code, no person shall
incur any civil penalty as a result of making any report required by
this article.
(k) No report is required under this section where a report of the
action taken is already required under Section 805.
SEC. 133. SEC. 115. Section 3665.8
is added to the Business and Professions Code, to read:
3665.8. Unless otherwise provided, on or after July 1,
2013 2014 , the committee shall post on its
Internet Web site the following information, including the name and
license number, in its possession, custody, or control regarding
every licensee for which whom the
committee licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the committee.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 3665.8 or 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 134. SEC. 116. Section 3665.9
is added to the Business and Professions Code, to read:
3665.9. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The committee shall notify
the licensee of the license suspension and of his or her right to
have the issue of penalty heard as provided in this section.
(b) Upon its own motion or for good cause shown, a committee may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the committee, in the
discretion of the board. A licensee may request a hearing on the
penalty and that hearing shall be held within 90 days from the date
of the request. If the order suspending or revoking the license or
authority to practice is overturned on appeal, any discipline ordered
pursuant to this section shall automatically cease. Upon a showing
to the administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 135. SEC. 117. Section 3769.4
is added to the Business and Professions Code, to read:
3769.4. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 136. SEC. 118. Section 3769.5 is
added to the Business and Professions Code, to read:
3769.5. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters a settlement pursuant to this section is
not precluded from filing a petition, in the timeframe permitted by
law, to modify the terms of the settlement or petition for early
termination of probation, if probation is part of the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 137. SEC. 119. Section 3769.6
is added to the Business and Professions Code, to read:
3769.6. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The board shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The board shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the issue
of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the board
shall suspend the license until the time for appeal has elapsed, if
no appeal has been taken, or until the judgment of conviction has
been affirmed on appeal or has otherwise become final, and until
further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the board may decline to impose or may set
aside the suspension when it appears to be in the interest of justice
to do so, with due regard to maintaining the integrity of, and
confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the board when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the board from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 138. SEC. 120. Section 3769.7
is added to the Business and Professions Code, to read:
3769.7. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 139. Section 3769.8 is added to the
Business and Professions Code, to read:
3769.8. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the board shall
be subject to the following requirements:
(1) The board shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the board
shall promptly revoke the license of the individual in accordance
with the procedures set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
board shall not stay the revocation and place the license on
probation.
(3) The board shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 140. SEC. 121. Section 3769.9
is added to the Business and Professions Code, to read:
3769.9. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information in its possession, custody, or
control regarding every licensee for which
whom the board licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the healing arts board.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 141. Section 3796.10 is added to the
Business and Professions Code, to read:
3796.10. (a) Unless otherwise
provided, if a licensee possesses a license or is otherwise
authorized to practice in any state other than California or by any
agency of the federal government and that license or authority is
suspended or revoked outright, the California license of the licensee
shall be suspended automatically for the duration of the suspension
or revocation, unless terminated or rescinded as provided in
subdivision (c). The healing arts board shall notify the licensee of
the license suspension and of his or her right to have the issue of
penalty heard as provided in this section.
(b) Upon its own motion or for good cause shown, a healing arts
board may decline to impose or may set aside the suspension when it
appears to be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific
healing art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 122. Section 3769.10 is added to the
Business and Professions Code , to read:
3769.10. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The board shall notify the
licensee of the license suspension and of his or her right to have
the issue of penalty heard as provided in this section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
SEC. 123. Section 3769.11 is added to the
Business and Professions Code , to read:
3769.11. Notwithstanding any other provision of law, it is a
public offense, punishable by a fine not to exceed one hundred
thousand dollars ($100,000), by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
practice respiratory therapy to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice respiratory therapy or to violate any provision of this
chapter.
SEC. 142. SEC. 124. Section 4316 is
added to the Business and Professions Code, to read:
4316. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 143. SEC. 125. Section 4316.1
is added to the Business and Professions Code, to read:
4316.1. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 144. SEC. 126. Section 4316.2
is added to the Business and Professions Code, to read:
4316.2. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The board shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The board shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the issue
of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the board
shall suspend the license until the time for appeal has elapsed, if
no appeal has been taken, or until the judgment of conviction has
been affirmed on appeal or has otherwise become final, and until
further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the board may decline to impose or may set
aside the suspension when it appears to be in the interest of justice
to do so, with due regard to maintaining the integrity of, and
confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the board when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the board from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 145. SEC. 127. Section 4316.3
is added to the Business and Professions Code, to read:
4316.3. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense" shall mean any of the following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 146. Section 4316.4 is added to the
Business and Professions Code, to read:
4316.4. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the board shall
be subject to the following requirements:
(1) The board shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the board
shall promptly revoke the license of the individual in accordance
with the procedures set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
board shall not stay the revocation and place the license on
probation.
(3) The board shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 147. SEC. 128. Section 4316.5
is added to the Business and Professions Code, to read:
4316.5. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information in its possession, custody, or
control regarding every licensee for which
whom the board licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the healing arts board.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 148. SEC. 129. Section 4316.6
is added to the Business and Professions Code, to read:
4316.6. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The healing arts board
shall notify the licensee of the license suspension and of his or her
right to have the issue of penalty heard as provided in this
section.
(b) Upon its own motion or for good cause shown, a healing arts
board may decline to impose or may set aside the suspension when it
appears to be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific
healing art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 130. Section 4344 is added to the
Business and Professions Code , to read:
4344. Notwithstanding any other provision of law, it is a public
offense, punishable by a fine not to exceed one hundred thousand
dollars ($100,000), by imprisonment in a county jail not to exceed
one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
practice pharmacy to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice pharmacy or to violate any provision of this chapter.
SEC. 149. SEC. 131. Section 4375 is
added to the Business and Professions Code, to read:
4375. (a) It is the intent of the Legislature, through a request
in 2012 2013 from the Joint Legislative
Audit Committee, that the Bureau of State Audits conduct a thorough
performance audit of the Pharmacists Recovery Program
pharmacists recovery program to evaluate the
effectiveness and efficiency of the program, and make recommendations
regarding the continuation of the program and any changes or reforms
required to ensure that pharmacists and intern pharmacists
participating in the program are appropriately monitored, and the
public is protected from pharmacists and intern pharmacists who
are impaired due to
alcohol or drug abuse or mental or physical illness. The audit shall
be completed by January 1, 2013 2014 .
The board and its staff shall cooperate with the audit, and the board
shall provide data, information, and case files as requested by the
auditor to perform all of its his or her
duties. The provision of confidential data, information, and case
files by the board to the auditor shall not constitute a waiver of
any exemption from disclosure or discovery or of any confidentiality
protection or privilege otherwise provided by law that is applicable
to the data, information, or case files.
(b) It is the intent of the Legislature that the audit
shall be paid for with funds from the Pharmacy Board
Contingent Fund.
SEC. 150. SEC. 132. Section 4526 is
added to the Business and Professions Code, to read:
4526. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 151. SEC. 133. Section 4526.1 is
added to the Business and Professions Code, to read:
4526.1. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 152. SEC. 134. Section 4526.2
is added to the Business and Professions Code, to read:
4526.2. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The board shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The board shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the issue
of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the board
shall suspend the license until the time for appeal has elapsed, if
no appeal has been taken, or until the judgment of conviction has
been affirmed on appeal or has otherwise become final, and until
further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the board may decline to impose or may set
aside the suspension when it appears to be in the interest of justice
to do so, with due regard to maintaining the integrity of, and
confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the board when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the board from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 153. SEC. 135. Section 4526.3
is added to the Business and Professions Code, to read:
4526.3. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense" shall mean any of the following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 154. Section 4526.4 is added to the
Business and Professions Code, to read:
4526.4. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the board shall
be subject to the following requirements:
(1) The board shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the board
shall promptly revoke the license of the individual in accordance
with the procedures set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
board shall not stay the revocation and place the license on
probation.
(3) The board shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 155. Section 4526.5 is added to the
Business and Professions Code, to read:
4526.5. (a) Notwithstanding any other provision of law making a
communication between a licensee and his or her patients a privileged
communication, those provisions shall not apply to investigations or
proceedings conducted by the board. Members of the board, deputies,
employees, agents, the office of the Attorney General, and
representatives of the board shall keep in confidence during the
course of investigations the names of any patients whose records are
reviewed and may not disclose or reveal those names, except as is
necessary during the course of an investigation, unless and until
proceedings are instituted. The authority under this subdivision to
examine records of patients in the office of a licensee is limited to
records of patients who have complained to the board about that
licensee.
(b) Notwithstanding any other provision of law, the Attorney
General and his or her investigative agents, and the board and its
investigators and representatives may inquire into any alleged
violation of the laws under the jurisdiction of the board or any
other federal or state law, regulation, or rule relevant to the
practice regulated by the board, whichever is applicable, and may
inspect documents relevant to those investigations in accordance with
the following procedures:
(1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where a patient provides written
authorization.
(2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied where relevant to
an investigation of a licensee.
(c) In all cases where documents are inspected or copies of those
documents are received, their acquisition or review shall be arranged
so as not to unnecessarily disrupt the medical and business
operations of the licensee or of the facility where the records are
kept or used.
(d) Where certified documents are lawfully requested from
licensees in accordance with this section by the Attorney General or
his or her agents or deputies, or investigators of any board, the
documents shall be provided within 10 business days of receipt of the
request, unless the licensee is unable to provide the certified
documents within this time period for good cause, including, but not
limited to, physical inability to access the records in the time
allowed due to illness or travel. Failure to produce requested
certified documents or copies thereof, after being informed of the
required deadline, shall constitute unprofessional conduct. A board
may use its authority to cite and fine a licensee for any violation
of this section. This remedy is in addition to any other authority of
the board to sanction a licensee for a delay in producing requested
records.
(e) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care of
patients.
(f) The licensee shall cooperate with the board in furnishing
information or assistance as may be required, including, but not
limited to, participation in an interview with investigators or
representatives of the healing arts board.
(g) This section shall not apply to a licensee who does not have
access to, and control over, certified medical records or other types
of documents that belong to or are controlled by a health facility
or clinic.
SEC. 156. Section 4526.6 is added to the
Business and Professions Code, to read:
4526.6. (a) (1) Notwithstanding any other provision of law, a
licensee who fails or refuses to comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section shall be required
to pay to the board a civil penalty of up to one thousand dollars
($1,000) per day for each day that the documents have not been
produced after the 15th day, up to ten thousand dollars ($10,000),
unless the licensee is unable to provide the documents within this
time period for good cause.
(2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section. Failure to provide
the authorizing patient's certified medical records to the board
within 15 days of receiving the request, authorization, and notice
shall subject the health care facility to a civil penalty, payable to
the healing arts board, of up to one thousand dollars ($1,000) per
day for each day that the documents have not been produced after the
15th day, up to ten thousand dollars ($10,000), unless the health
care facility is unable to provide the documents within this time
period for good cause. This paragraph shall not require health care
facilities to assist the board in obtaining the patient's
authorization. The board shall pay the reasonable costs of copying
the certified medical records, but shall not be required to make that
payment prior to the production of the medical records.
(b) (1) A licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board, shall pay to the board a civil penalty of
up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced after the date by which the court
order requires the documents to be produced, up to ten thousand
dollars ($10,000), unless it is determined that the order is unlawful
or invalid. Any statute of limitations applicable to the filing of
an accusation by the board shall be tolled during the period the
licensee is out of compliance with the court order and during any
related appeals.
(2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to a board is guilty of a misdemeanor punishable by a
fine payable to the board not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by the board
shall be tolled during the period the licensee is out of compliance
with the court order and during any related appeals.
(3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to the board, that is accompanied by a
notice citing this section and describing the penalties for failure
to comply with this section, shall pay to the board a civil penalty
of up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced, up to ten thousand dollars
($10,000), after the date by which the court order requires the
documents to be produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to a healing arts board is guilty of a
misdemeanor punishable by a fine payable to the board not to exceed
five thousand dollars ($5,000). Any statute of limitations applicable
to the filing of an accusation by the healing arts board against a
licensee shall be tolled during the period the health care facility
is out of compliance with the court order and during any related
appeals.
(c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. Multiple acts by a
health care facility in violation of subdivision (b) shall be
punishable by a fine not to exceed five thousand dollars ($5,000),
shall be reported to the State Department of Public Health, and shall
be considered as grounds for disciplinary action with respect to
licensure, including suspension or revocation of the license or
certificate.
(d) A failure or refusal of a licensee to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the healing arts board constitutes unprofessional
conduct and is grounds for suspension or revocation of his or her
license.
(e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code). Any civil penalties paid to, or received by, the
board pursuant to this section shall be deposited into the fund
administered by the board.
(f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the licensee's board.
(g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.
(h) If a board complies with Section 1684.1, 2225.5, or 2969, that
board shall not be subject to the requirements of this section.
(i) This section shall not apply to a licensee who does not have
access to, or control over, certified medical records or other types
of documents that belong to or are controlled by a health facility or
clinic.
SEC. 157. SEC. 136. Section 4526.8
is added to the Business and Professions Code, to read:
4526.8. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information, including the name and the
license number, in its possession, custody, or control regarding
every licensee for which whom the board
licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the board.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 4526.6 or 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 158. SEC. 137. Section 4526.9
is added to the Business and Professions Code, to read:
4526.9. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The healing arts board
shall notify the licensee of the license suspension and of his or her
right to have the issue of penalty heard as provided in this
section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 138. Section 4543.5 is added to the
Business and Professions Code , to read:
4543.5. Notwithstanding any other provision of law, it is a
public offense, punishable by a fine not to exceed one hundred
thousand dollars ($100,000), by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid psychiatric
technician license to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a psychiatric
technician license or to violate any provision of this chapter.
SEC. 139. Section 4860 of the Business
and Professions Code is amended to read:
4860. (a) It is the intent of the
Legislature that the Veterinary Medical Board seek ways and means to
identify and rehabilitate veterinarians and registered veterinary
technicians with impairment due to abuse of dangerous drugs or
alcohol, affecting competency so that veterinarians and registered
veterinary technicians so afflicted may be treated and returned to
the practice of veterinary medicine in a manner that will not
endanger the public health and safety.
(b) It is the intent of the Legislature, through a request in 2013
from the Joint Legislative Audit Committee, that the Bureau of State
Audits conduct a thorough performance audit of the board's diversion
program to evaluate the effectiveness and efficiency of the program,
and make recommendations regarding the continuation of the program
and any changes or reforms required to ensure that veterinarians and
registered veterinary technicians participating in the program are
appropriately monitored and that the public is protected from
veterinarians and registered veterinary technicians who are impaired
due to alcohol or drug abuse or mental or physical illness. The audit
shall be completed by January 1, 2014. The board and its staff shall
cooperate with the audit, and the board shall provide data,
information, and case files as requested by the auditor to perform
all of his or her duties. The provision of confidential data,
information, and case files by the board to the auditor shall not
constitute a waiver of any exemption from disclosure or discovery or
of any confidentiality protection or privilege otherwise provided by
law that is applicable to the data, information, or case files.
(c) It is the intent of the Legislature that the audit be paid for
with funds from the Veterinary Medical Board Contingent Fund.
SEC. 159. SEC. 140. Section 4888 is
added to the Business and Professions Code, to read:
4888. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 160. SEC. 141. Section 4888.1
is added to the Business and Professions Code, to read:
4888.1. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 161. SEC. 142. Section 4888.2
is added to the Business and Professions Code, to read:
4888.2. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The board shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The board shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the issue
of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the board
shall suspend the license until the time for appeal has elapsed, if
no appeal has been taken, or until the judgment of conviction has
been affirmed on appeal or has otherwise become final, and until
further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the board may decline to impose or may set
aside the suspension when it appears to be in the interest of justice
to do so, with due regard to maintaining the integrity of, and
confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the board when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the board from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 162. SEC. 143. Section 4888.3
is added to the Business and Professions Code, to read:
4888.3. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 163. Section 4888.4 is added to the
Business and Professions Code, to read:
4888.4. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the board shall
be subject to the following requirements:
(1) The board shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the board
shall promptly revoke the license of the individual in accordance
with the procedures set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
board shall not stay the revocation and place the license on
probation.
(3) The board shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 164. SEC. 144. Section 4888.5
is added to the Business and Professions Code, to read:
4888.5. (a) Notwithstanding any other provision of law, any
employer of a licensee shall report to the board the suspension or
termination for cause, or any resignation in lieu of suspension or
termination for cause, of any licensee in its employ within 15
business days. The report shall not be made until after the
conclusion of the review process specified in Section 52.3 of Title 2
of the California Code of Regulations and Skelly v. State Personnel
Bd. (1975) 15 Cal.3d 194, for public employees. This required
reporting shall not constitute a waiver of confidentiality of medical
records. The information reported or disclosed shall be kept
confidential except as provided in subdivision (c) of Section 800 and
shall not be subject to discovery in civil cases.
(b) The information to be reported by the employer shall include
the name and license number of the licentiate involved, a description
of the facts and circumstances of the suspension or termination for
cause, any resignation in lieu of suspension or termination for
cause, and any other relevant information deemed appropriate by the
employer.
(c) The board shall be entitled to inspect and copy the following
documents in the record for any suspension or termination for cause,
or any resignation in lieu of suspension or termination for cause,
resulting in action that is required to be reported pursuant to this
section:
(1) Any statement for suspension or termination of the licensee.
(2) Any document or exhibits relevant to the suspension or
termination.
(d) If, during the investigation by the board of the cause for the
termination or suspension or resignation of the licensee, it is
found that there has been a violation of existing state or federal
law, the board shall report the violation to the appropriate agency.
(e) For purposes of this section, "suspension or termination for
cause" or "resignation in lieu of suspension or termination for cause"
is defined as resignation, suspension, or termination from
employment for any of the following reasons:
(1) Use of controlled substances or alcohol to the extent that it
impairs the licensee's ability to safely practice.
(2) Unlawful sale of a controlled substance or other prescription
items.
(3) Patient or client abuse, neglect, physical harm, or sexual
contact with a patient or client.
(4) Gross negligence or incompetence.
(5) Theft from a patient or client, any other employee, or the
employer.
(f) As used in this section, the following definitions apply:
(1) "Gross negligence" means a substantial departure from the
standard of care, which, under similar circumstances, would have
ordinarily been exercised by a competent licensee, and which has or
could have resulted in harm to the consumer. An exercise of so slight
a degree of care as to justify the belief that there was a conscious
disregard or indifference for the health, safety, or welfare of the
consumer shall be considered a substantial departure from the
standard of care.
(2) "Incompetence" means the lack of possession of, and the
failure to exercise that degree of learning, skill, care, and
experience ordinarily possessed by, a responsible licensee.
(3) "Willful" means a knowing and intentional violation of a known
legal duty.
(g) (1) Willful failure of an employer to make a report required
by this section is punishable by an administrative fine not to exceed
one hundred thousand dollars ($100,000) per violation.
(2) Any failure of an employer, other than willful failure, to
make a report required by this section is punishable by an
administrative fine not to exceed fifty thousand dollars ($50,000).
(h) The board shall investigate the circumstances underlying any
report received pursuant to this section within 30 days to determine
if an interim suspension order or temporary restraining order should
be issued. The board shall otherwise provide timely disposition of
the reports received pursuant to this section.
(i) The board shall send to the licentiate a copy of the report
along with the reasons for the filing of the report and notice
advising the licentiate of his or her right to submit additional
statements or other information to the board.
(j) Pursuant to Section 43.8 of the Civil Code, no person shall
incur any civil penalty as a result of making any report required by
this article.
(k) No report is required under this section where a report of the
action taken is already required under Section 805.
SEC. 165. SEC. 145. Section 4888.6
is added to the Business and Professions Code, to read:
4888.6. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information, including the name and license
number, in its possession, custody, or control regarding every
licensee for which whom the board
licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the board.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 166. SEC. 146. Section 4888.7
is added to the Business and Professions Code, to read:
4888.7. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The board shall notify the
licensee of the license suspension and of his or her right to have
the issue of penalty heard as provided in this section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the
licensee may request that the hearing on the penalty conducted
pursuant to subdivision (c) be held at the same time as a hearing on
the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 147. Section 4962 is added to the
Business and Professions Code , to read:
4962. Notwithstanding any other provision of law, it is a
public offense, punishable by a fine not to exceed one hundred
thousand dollars ($100,000), by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license to
practice acupuncture to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license to
practice acupuncture or to violate any provision of this chapter.
SEC. 167. SEC. 148. Section 4964.1
is added to the Business and Professions Code, to read:
4964.1. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 168. SEC. 149. Section 4964.2
is added to the Business and Professions Code, to read:
4964.2. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 169. SEC. 150. Section 4964.3
is added to the Business and Professions Code, to read:
4964.3. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The board shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The board shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the issue
of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the board
shall suspend the license until the time for appeal has elapsed, if
no appeal has been taken, or until the judgment of conviction has
been affirmed on appeal or has otherwise become final, and until
further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the board may decline to impose or may set
aside the suspension when it appears to be in the interest of justice
to do so, with due regard to maintaining the integrity of, and
confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the board when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the board from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 170. SEC. 151. Section 4964.4
is added to the Business and Professions Code, to read:
4964.4. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 171. Section 4964.55 is added to the
Business and Professions Code, to read:
4964.55. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the board shall
be subject to the following requirements:
(1) The board shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the board
shall promptly revoke the license of the individual in accordance
with the procedures set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
board shall not stay the revocation and place the license on
probation.
(3) The board shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 172. Section 4964.6 is added to the
Business and Professions Code, to read:
4964.6. (a) Notwithstanding any other provision of law making a
communication between a licensee and his or her patients a privileged
communication, those provisions shall not apply to investigations or
proceedings conducted by the board. Members of the board, deputies,
employees, agents, the office of the Attorney General, and
representatives of the board shall keep in confidence during the
course of investigations the names of any patients whose records are
reviewed and may not disclose or reveal those names, except as is
necessary during the course of an investigation, unless and until
proceedings are instituted. The authority under this subdivision to
examine records of patients in the office of a licensee is limited to
records of patients who have complained to the board about that
licensee.
(b) Notwithstanding any other provision of law, the Attorney
General and his or her investigative agents, and the board and its
investigators and representatives may inquire into any alleged
violation of the laws under the jurisdiction of the board or any
other federal or state law, regulation, or rule relevant to the
practice regulated by the board, whichever is applicable, and may
inspect documents relevant to those investigations in accordance with
the following procedures:
(1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where a patient provides written
authorization.
(2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied where relevant to
an investigation of a licensee.
(c) In all cases where documents are inspected or copies of those
documents are received, their acquisition or review shall be arranged
so as not to unnecessarily disrupt the medical and business
operations of the licensee or of the facility where the records are
kept or used.
(d) Where certified documents are lawfully requested from
licensees in accordance with this section by the Attorney General or
his or her agents or deputies, or investigators of any board, the
documents shall be provided within 10 business days of receipt of the
request, unless the licensee is unable to provide the certified
documents within this time period for good cause, including, but not
limited to, physical inability to access the records in the time
allowed due to illness or travel. Failure to produce requested
certified documents or copies thereof, after being informed of the
required deadline, shall constitute unprofessional conduct. A board
may use its authority to cite and fine a licensee for any violation
of this section. This remedy is in addition to any other authority of
the healing arts board to sanction a licensee for a delay in
producing requested records.
(e) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care of
patients.
(f) The licensee shall cooperate with the board in furnishing
information or assistance as may be required, including, but not
limited to, participation in an interview with investigators or
representatives of the healing arts board.
(g) This section shall not apply to a licensee who does not have
access to, and control over, certified medical records or other types
of documents that belong to or are controlled by a health facility
or clinic.
SEC. 173. Section 4964.7 is added to the
Business and Professions Code, to read:
4964.7. (a) (1) Notwithstanding any other provision of law, a
licensee who fails or refuses to comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section shall be required
to pay to the board a civil penalty of up to one thousand dollars
($1,000) per day for each day that the documents have not been
produced after the 15th day, up to ten thousand dollars ($10,000),
unless the licensee is unable to provide the documents within this
time period for good cause.
(2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section. Failure to provide
the authorizing patient's certified medical records to the board
within 15 days of receiving the request, authorization, and notice
shall subject the health care facility to a civil penalty, payable to
the healing arts board, of up to one thousand dollars ($1,000) per
day for each day that the documents have not been produced after the
15th day, up to ten thousand dollars ($10,000), unless the health
care facility is unable to provide the documents within this time
period for good cause. This paragraph shall not require health care
facilities to assist the board in obtaining the patient's
authorization. The board shall pay the reasonable costs of copying
the certified medical records, but shall not be required to make that
payment prior to the production of the medical records.
(b) (1) A licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board, shall pay to the healing arts board a civil
penalty of up to one thousand dollars ($1,000) per day for each day
that the documents have not been produced after the date by which the
court order requires the documents to be produced, up to ten
thousand dollars ($10,000), unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the healing arts board shall be tolled
during the period the licensee is out of compliance with the court
order and during any related appeals.
(2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to a board is guilty of a misdemeanor punishable by a
fine payable to the board not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by the board
shall be tolled during the period the licensee is out of compliance
with the court order and during any related appeals.
(3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to the board, that is accompanied by a
notice citing this section and describing the penalties for failure
to comply with this section, shall pay to the board a civil penalty
of up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced, up to ten thousand dollars
($10,000), after the date by which the court order requires the
documents to be produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to the board is guilty of a misdemeanor
punishable by a fine payable to the board not to exceed five thousand
dollars ($5,000). Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. Multiple acts by a
health care facility in violation of subdivision (b) shall be
punishable by a fine not to exceed five thousand dollars ($5,000),
shall be reported to the State Department of Public Health, and shall
be considered as grounds for disciplinary action with respect to
licensure, including suspension or revocation of the license or
certificate.
(d) A failure or refusal of a licensee to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board constitutes unprofessional conduct and is
grounds for suspension or revocation of his or her license.
(e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code). Any civil penalties paid to, or received by, the
board pursuant to this section shall be deposited into the fund
administered by the board.
(f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the licensee's board.
(g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.
(h) If a board complies with Section 1684.1, 2225.5, or 2969, that
board shall not be subject to the requirements of this section.
(i) This section shall not apply to a licensee who does not have
access to, or control over, certified medical records or other types
of documents that belong to or are controlled by a health facility or
clinic.
SEC. 174. SEC. 152. Section 4964.8
is added to the Business and Professions Code, to read:
4964.8. (a) Notwithstanding any other provision of law, any
employer of a licensee shall report to the board the suspension or
termination for cause, or any resignation in lieu of suspension or
termination for cause, of any licensee in its employ within 15
business days. The report shall not be made until after the
conclusion of the review process specified in Section 52.3 of Title 2
of the California Code of Regulations and Skelly v. State Personnel
Bd. (1975) 15 Cal.3d 194, for public employees. This required
reporting shall not constitute a waiver of confidentiality of medical
records. The information reported or disclosed shall be kept
confidential except as provided in subdivision (c) of Section 800 and
shall not be subject to discovery in civil cases.
(b) The information to be reported by the employer shall include
the name and license number of the licentiate involved, a description
of the facts and circumstances of the suspension or termination for
cause, any resignation in lieu of suspension or termination for
cause, and any other relevant information deemed appropriate by the
employer.
(c) The board shall be entitled to inspect and copy the following
documents in the record for any suspension or termination for cause,
or any resignation in lieu of suspension or termination for cause,
resulting in action that is required to be reported pursuant to this
section:
(1) Any statement for suspension or termination of the licensee.
(2) Any document or exhibits relevant to the suspension or
termination.
(d) If, during the investigation by the board of the cause for the
termination or suspension or resignation of the licensee, it is
found that there has been a violation of existing state or federal
law, the board shall report the violation to the appropriate agency.
(e) For purposes of this section, "suspension or termination for
cause" or "resignation in lieu of suspension or termination for cause"
is defined as resignation, suspension, or termination from
employment for any of the following reasons:
(1) Use of controlled substances or alcohol to the extent that it
impairs the licensee's ability to safely practice.
(2) Unlawful sale of a controlled substance or other prescription
items.
(3) Patient or client abuse, neglect, physical harm, or sexual
contact with a patient or client.
(4) Gross negligence or incompetence.
(5) Theft from a patient or client, any other employee, or the
employer.
(f) As used in this section, the following definitions apply:
(1) "Gross negligence" means a substantial departure from the
standard of care, which, under similar circumstances, would have
ordinarily been exercised by a competent licensee, and which has or
could have resulted in harm to the consumer. An exercise of so slight
a degree of care as to justify the belief that there was a conscious
disregard or indifference for the health, safety, or welfare of the
consumer shall be considered a substantial departure from the
standard of care.
(2) "Incompetence" means the lack of possession of, and the
failure to exercise that degree of learning, skill, care, and
experience ordinarily possessed by, a responsible licensee.
(3) "Willful" means a knowing and intentional violation of a known
legal duty.
(g) (1) Willful failure of an employer to make a report required
by this section is punishable by an administrative fine not to exceed
one hundred thousand dollars
($100,000) per violation.
(2) Any failure of an employer, other than willful failure, to
make a report required by this section is punishable by an
administrative fine not to exceed fifty thousand dollars ($50,000).
(h) The board shall investigate the circumstances underlying any
report received pursuant to this section within 30 days to determine
if an interim suspension order or temporary restraining order should
be issued. The board shall otherwise provide timely disposition of
the reports received pursuant to this section.
(i) The board shall send to the licentiate a copy of the report
along with the reasons for the filing of the report and notice
advising the licentiate of his or her right to submit additional
statements or other information to the board.
(j) Pursuant to Section 43.8 of the Civil Code, no person shall
incur any civil penalty as a result of making any report required by
this article.
(k) No report is required under this section where a report of the
action taken is already required under Section 805.
SEC. 175. SEC. 153. Section 4964.9
is added to the Business and Professions Code, to read:
4964.9. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information, including the name and license
number, in its possession, custody, or control regarding every
licensee for which whom the board
licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the board.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 4964.7 or 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 176. SEC. 154. Section 4964.10
is added to the Business and Professions Code, to read:
4964.10. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The board shall notify the
licensee of the license suspension and of his or her right to have
the issue of penalty heard as provided in this section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 177. SEC. 155. Section 4982.26
of the Business and Professions Code is amended to read:
4982.26. (a) The board shall revoke any license issued under this
chapter upon a decision made in accordance with the procedures set
forth in Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2 of the Government Code, that contains any
finding of fact that the licensee or registrant engaged in any act of
sexual contact, as defined in Section 729, when that act is with a
patient, or with a former patient when the relationship was
terminated primarily for the purpose of engaging in that act. The
revocation shall not be stayed by the administrative law judge or the
board.
(b) Except as otherwise provided, any proposed decision or
decision issued under this chapter in accordance with the procedures
set forth in Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2 of the Government Code, that contains any
finding of fact that the licensee has committed a sex offense, shall
contain an order revoking the license. The proposed decision or
decision shall not contain any order staying the revocation of the
licensee.
(c) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 156. Section 4990.43 is added to the
Business and Professions Code , to read:
4990.43. Notwithstanding any other provision of law, it is a
public offense, punishable by a fine not to exceed one hundred
thousand dollars ($100,000), by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment, for:
(a) Any person who does not hold a current and valid license
issued under the chapters the board administers and enforces as
described in Section 4990.12 to engage in that practice.
(b) Any person to fraudulently buy, sell, or obtain a license
issued under the chapters the board administers and enforces as
described in Section 4990.12 or to violate any provision of those
chapters.
SEC. 178. SEC. 157. Section 4990.44
is added to the Business and Professions Code, to read:
4990.44. (a) The board may delegate to its executive officer the
authority to adopt a proposed default decision where an
administrative action to revoke a license has been filed and the
licensee has failed to file a notice of defense or to appear at the
hearing and a proposed default decision revoking the license has been
issued.
(b) The board may delegate to its executive officer the authority
to adopt a proposed settlement agreement where an administrative
action to revoke a license has been filed by the board and the
licensee has agreed to the revocation or surrender of his or her
license.
(c) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed default decisions or
proposed settlement agreements adopted pursuant to this section.
SEC. 179. SEC. 158. Section 4990.45
is added to the Business and Professions Code, to read:
4990.45. (a) Notwithstanding Section 11415.60 of the Government
Code, the board may enter into a settlement with a licensee or
applicant in lieu of the issuance of an accusation or statement of
issues against that licensee or applicant, as applicable.
(b) The settlement shall include language identifying the factual
basis for the action being taken and a list of the statutes or
regulations violated.
(c) A person who enters into a settlement pursuant to
this section is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement or
petition for early termination of probation, if probation is part of
the settlement.
(d) Any settlement against a licensee executed pursuant to this
section shall be considered discipline and a public record and shall
be posted on the applicable board's Internet Web site. Any settlement
against an applicant executed pursuant to this section shall be
considered a public record and shall be posted on the applicable
board's Internet Web site.
(e) The executive officer shall, at scheduled board meetings,
report to the board the number of proposed settlement agreements
adopted pursuant to this section.
SEC. 180. SEC. 159. Section 4990.46
is added to the Business and Professions Code, to read:
4990.46. (a) The license of a licensee shall be suspended
automatically during any time that the licensee is incarcerated after
conviction of a felony, regardless of whether the conviction has
been appealed. The board shall, immediately upon receipt of the
certified copy of the record of conviction, determine whether the
license of the licensee has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that
suspension. The board shall notify the licensee in writing of the
license suspension and of his or her right to elect to have the issue
of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Hearings it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a licensee, the board
shall suspend the license until the time for appeal has elapsed, if
no appeal has been taken, or until the judgment of conviction has
been affirmed on appeal or has otherwise become final, and until
further order of the board.
(c) Notwithstanding subdivision (b), a conviction of a charge of
violating any federal statute or regulation or any statute or
regulation of this state, regulating dangerous drugs or controlled
substances, or a conviction of Section 187, 261, 262, or 288 of the
Penal Code, shall be conclusively presumed to be substantially
related to the qualifications, functions, or duties of a licensee and
no hearing shall be held on this issue. However, upon its own motion
or for good cause shown, the board may decline to impose or may set
aside the suspension when it appears to be in the interest of justice
to do so, with due regard to maintaining the integrity of, and
confidence in, the practice regulated by the board.
(d) (1) Discipline may be ordered against a licensee in accordance
with the statutes and regulations of the board when the time for
appeal has elapsed, the judgment of conviction has been affirmed on
appeal, or an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw his
or her plea of guilty and to enter a plea of not guilty, setting
aside the verdict of guilty, or dismissing the accusation, complaint,
information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Hearings. The hearing shall
not be had held until the judgment of
conviction has become final or, irrespective of a subsequent order
under Section 1203.4 of the Penal Code, an order granting probation
has been made suspending the imposition of sentence; except that a
licensee may, at his or her option, elect to have the issue of
penalty decided before those time periods have elapsed. Where the
licensee so elects, the issue of penalty shall be heard in the manner
described in subdivision (b) at the hearing to determine whether the
conviction was substantially related to the qualifications,
functions, or duties of a licensee. If the conviction of a licensee
who has made this election is overturned on appeal, any discipline
ordered pursuant to this section shall automatically cease. Nothing
in this subdivision shall prohibit the board from pursuing
disciplinary action based on any cause other than the overturned
conviction.
(e) The record of the proceedings resulting in a conviction,
including a transcript of the testimony in those proceedings, may be
received in evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by the board shall not
apply to proceedings conducted pursuant to this section.
SEC. 181. SEC. 160. Section 4990.47
is added to the Business and Professions Code, to read:
4990.47. (a) Except as otherwise provided, any proposed decision
or decision issued in accordance with the procedures set forth in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, that contains any finding of fact
that the licensee engaged in any act of sexual contact with a
patient, as defined in subdivision (c) of Section 729, or any finding
that the licensee has committed a sex offense, shall contain an
order revoking the license. The proposed decision shall not contain
any order staying the revocation of the licensee.
(b) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 182. Section 4990.48 is added to the
Business and Professions Code, to read:
4990.48. (a) Except as otherwise provided, with regard to an
individual who is required to register as a sex offender pursuant to
Section 290 of the Penal Code, or the equivalent in another state or
territory, under military law, or under federal law, the board shall
be subject to the following requirements:
(1) The board shall deny an application by the individual for
licensure in accordance with the procedures set forth in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(2) If the individual is licensed under this chapter, the board
shall promptly revoke the license of the individual in accordance
with the procedures set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code. The
board shall not stay the revocation and place the license on
probation.
(3) The board shall not reinstate or reissue the individual's
license. The board shall not issue a stay of license denial nor place
the license on probation.
(b) This section shall not apply to any of the following:
(1) An individual who has been relieved under Section 290.5 of the
Penal Code of his or her duty to register as a sex offender, or
whose duty to register has otherwise been formally terminated under
California law or the law of the jurisdiction that requires his or
her registration as a sex offender.
(2) An individual who is required to register as a sex offender
pursuant to Section 290 of the Penal Code solely because of a
misdemeanor conviction under Section 314 of the Penal Code. However,
nothing in this paragraph shall prohibit the board from exercising
its discretion to discipline a licensee under any other provision of
state law based upon the licensee's conviction under Section 314 of
the Penal Code.
(3) Any administrative adjudication proceeding under Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code that is fully adjudicated prior to January 1,
2008. A petition for reinstatement of a revoked or surrendered
license shall be considered a new proceeding for purposes of this
paragraph, and the prohibition against reinstating a license to an
individual who is required to register as a sex offender shall be
applicable.
SEC. 183. Section 4990.49 is added to the
Business and Professions Code, to read:
4990.49. (a) Notwithstanding any other provision of law making a
communication between a licensee and his or her patients a privileged
communication, those provisions shall not apply to investigations or
proceedings conducted by the board. Members of the board, deputies,
employees, agents, the office of the Attorney General, and
representatives of the board shall keep in confidence during the
course of investigations the names of any patients whose records are
reviewed and may not disclose or reveal those names, except as is
necessary during the course of an investigation, unless and until
proceedings are instituted. The authority under this subdivision to
examine records of patients in the office of a licensee is limited to
records of patients who have complained to the board about that
licensee.
(b) Notwithstanding any other provision of law, the Attorney
General and his or her investigative agents, and the board and its
investigators and representatives may inquire into any alleged
violation of the laws under the jurisdiction of the board or any
other federal or state law, regulation, or rule relevant to the
practice regulated by the board, whichever is applicable, and may
inspect documents relevant to those investigations in accordance with
the following procedures:
(1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where a patient provides written
authorization.
(2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied where relevant to
an investigation of a licensee.
(c) In all cases where documents are inspected or copies of those
documents are received, their acquisition or review shall be arranged
so as not to unnecessarily disrupt the medical and business
operations of the licensee or of the facility where the records are
kept or used.
(d) Where certified documents are lawfully requested from
licensees in accordance with this section by the Attorney General or
his or her agents or deputies, or investigators of any board, the
documents shall be provided within 10 business days of receipt of the
request, unless the licensee is unable to provide the certified
documents within this time period for good cause, including, but not
limited to, physical inability to access the records in the time
allowed due to illness or travel. Failure to produce requested
certified documents or copies thereof, after being informed of the
required deadline, shall constitute unprofessional conduct. A board
may use its authority to cite and fine a licensee for any violation
of this section. This remedy is in addition to any other authority of
the board to sanction a licensee for a delay in producing requested
records.
(e) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care of
patients.
(f) The licensee shall cooperate with the board in furnishing
information or assistance as may be required, including, but not
limited to, participation in an interview with investigators or
representatives of the board.
(g) This section shall not apply to a licensee who does not have
access to, and control over, certified medical records or other types
of documents that belong to or are controlled by a health facility
or clinic.
SEC. 184. Section 4990.50 is added to the
Business and Professions Code, to read:
4990.50. (a) (1) Notwithstanding any other provision of law, a
licensee who fails or refuses to comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section shall be required
to pay to the board a civil penalty of up to one thousand dollars
($1,000) per day for each day that the documents have not been
produced after the 15th day, up to ten thousand dollars ($10,000),
unless the licensee is unable to provide the documents within this
time period for good cause.
(2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section. Failure to provide
the authorizing patient's certified medical records to the board
within 15 days of receiving the request, authorization, and notice
shall subject the health care facility to a civil penalty, payable to
the board, of up to one thousand dollars ($1,000) per day for each
day that the documents have not been produced after the 15th day, up
to ten thousand dollars ($10,000), unless the health care facility is
unable to provide the documents within this
time period for good cause. This paragraph
shall not require health care facilities to assist the board in
obtaining the patient's authorization. The board shall pay the
reasonable costs of copying the certified medical records, but shall
not be required to make that payment prior to the production of the
medical records.
(b) (1) A licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board, shall pay to the board a civil penalty of
up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced after the date by which the court
order requires the documents to be produced, up to ten thousand
dollars ($10,000), unless it is determined that the order is unlawful
or invalid. Any statute of limitations applicable to the filing of
an accusation by the board shall be tolled during the period the
licensee is out of compliance with the court order and during any
related appeals.
(2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to a board is guilty of a misdemeanor punishable by a
fine payable to the board not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by the board
shall be tolled during the period the licensee is out of compliance
with the court order and during any related appeals.
(3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to the board, that is accompanied by a
notice citing this section and describing the penalties for failure
to comply with this section, shall pay to the board a civil penalty
of up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced, up to ten thousand dollars
($10,000), after the date by which the court order requires the
documents to be produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to the board is guilty of a misdemeanor
punishable by a fine payable to the board not to exceed five thousand
dollars ($5,000). Any statute of limitations applicable to the
filing of an accusation by the healing arts board against a licensee
shall be tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. Multiple acts by a
health care facility in violation of subdivision (b) shall be
punishable by a fine not to exceed five thousand dollars ($5,000),
shall be reported to the State Department of Public Health, and shall
be considered as grounds for disciplinary action with respect to
licensure, including suspension or revocation of the license or
certificate.
(d) A failure or refusal of a licensee to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the healing arts board constitutes unprofessional
conduct and is grounds for suspension or revocation of his or her
license.
(e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code). Any civil penalties paid to, or received by, the
board pursuant to this section shall be deposited into the fund
administered by the board.
(f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the licensee's board.
(g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.
(h) If a board complies with Section 1684.1, 2225.5, or 2969, that
board shall not be subject to the requirements of this section.
(i) This section shall not apply to a licensee who does not have
access to, or control over, certified medical records or other types
of documents that belong to or are controlled by a health facility or
clinic.
SEC. 185. SEC. 161. Section 4990.51
is added to the Business and Professions Code, to read:
4990.51. (a) Notwithstanding any other provision of law, any
employer of a licensee shall report to the board the suspension or
termination for cause, or any resignation in lieu of suspension or
termination for cause, of any licensee in its employ within 15
business days. The report shall not be made until after the
conclusion of the review process specified in Section 52.3 of Title 2
of the California Code of Regulations and Skelly v. State Personnel
Bd. (1975) 15 Cal.3d 194, for public employees. This required
reporting shall not constitute a waiver of confidentiality of medical
records. The information reported or disclosed shall be kept
confidential except as provided in subdivision (c) of Section 800 and
shall not be subject to discovery in civil cases.
(b) The information to be reported by the employer shall include
the name and license number of the licentiate involved, a description
of the facts and circumstances of the suspension or termination for
cause, any resignation in lieu of suspension or termination for
cause, and any other relevant information deemed appropriate by the
employer.
(c) The board shall be entitled to inspect and copy the following
documents in the record for any suspension or termination for cause,
or any resignation in lieu of suspension or termination for cause,
resulting in action that is required to be reported pursuant to this
section:
(1) Any statement for suspension or termination of the licensee.
(2) Any document or exhibits relevant to the suspension or
termination.
(d) If, during the investigation by the board of the cause for the
termination or suspension or resignation of the licensee, it is
found that there has been a violation of existing state or federal
law, the board shall report the violation to the appropriate agency.
(e) For purposes of this section, "suspension or termination for
cause" or "resignation in lieu of suspension or termination for cause"
is defined as resignation, suspension, or termination from
employment for any of the following reasons:
(1) Use of controlled substances or alcohol to the extent that it
impairs the licensee's ability to safely practice.
(2) Unlawful sale of a controlled substance or other prescription
items.
(3) Patient or client abuse, neglect, physical harm, or sexual
contact with a patient or client.
(4) Gross negligence or incompetence.
(5) Theft from a patient or client, any other employee, or the
employer.
(f) As used in this section, the following definitions apply:
(1) "Gross negligence" means a substantial departure from the
standard of care, which, under similar circumstances, would have
ordinarily been exercised by a competent licensee, and which has or
could have resulted in harm to the consumer. An exercise of so slight
a degree of care as to justify the belief that there was a conscious
disregard or indifference for the health, safety, or welfare of the
consumer shall be considered a substantial departure from the
standard of care.
(2) "Incompetence" means the lack of possession of, and the
failure to exercise that degree of learning, skill, care, and
experience ordinarily possessed by, a responsible licensee.
(3) "Willful" means a knowing and intentional violation of a known
legal duty.
(g) (1) Willful failure of an employer to make a report required
by this section is punishable by an administrative fine not to exceed
one hundred thousand dollars ($100,000) per violation.
(2) Any failure of an employer, other than willful failure, to
make a report required by this section is punishable by an
administrative fine not to exceed fifty thousand dollars ($50,000).
(h) The board shall investigate the circumstances underlying any
report received pursuant to this section within 30 days to determine
if an interim suspension order or temporary restraining order should
be issued. The board shall otherwise provide timely disposition of
the reports received pursuant to this section.
(i) The board shall send to the licentiate a copy of the report
along with the reasons for the filing of the report and notice
advising the licentiate of his or her right to submit additional
statements or other information to the board.
(j) Pursuant to Section 43.8 of the Civil Code, no person shall
incur any civil penalty as a result of making any report required by
this article.
(k) No report is required under this section where a report of the
action taken is already required under Section 805.
SEC. 186. SEC. 162. Section 4990.52
is added to the Business and Professions Code, to read:
4990.52. Unless otherwise provided, on or after July 1,
2013 2014 , the board shall post on its Internet
Web site the following information, including the name and license
number, in its possession, custody, or control regarding every
licensee for which whom the board
licenses:
(a) With regard to the status of every license, whether or not the
licensee or former licensee is in good standing, subject to a
temporary restraining order, subject to an interim suspension order,
subject to a restriction or cease practice ordered pursuant to
Section 23 of the Penal Code, or subject to any of the enforcement
actions described in Section 803.1.
(b) With regard to prior discipline of a licensee, whether or not
the licensee or former licensee has been subject to discipline by the
board or by the board of another state or jurisdiction, as described
in Section 803.1.
(c) Any felony conviction of a licensee reported to the board.
(d) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal of
that decision is pending.
(e) Any malpractice judgment or arbitration award imposed against
a licensee and reported to the board.
(f) Any hospital disciplinary action imposed against a licensee
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or reason
pursuant to Section 4990.50 or 805.
(g) Any misdemeanor conviction of a licensee that results in a
disciplinary action or an accusation that is not subsequently
withdrawn or dismissed.
(h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(i) The information provided on the Internet shall be in
accordance with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) and shall comply with the Department of Consumer
Affairs Guidelines for Access to Public Records.
(j) Information provided on the Internet may not include personal
information, unless otherwise provided pursuant to this chapter,
including the home telephone number, date of birth, or social
security number. The information may not include the licensee's
address, but may include the city and county of the licensee's
address of record.
SEC. 187. SEC. 163. Section 4990.53
is added to the Business and Professions Code, to read:
4990.53. (a) Unless otherwise provided, if a licensee possesses a
license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government and that
license or authority is suspended or revoked outright, the California
license of the licensee shall be suspended automatically for the
duration of the suspension or revocation, unless terminated or
rescinded as provided in subdivision (c). The board shall notify the
licensee of the license suspension and of his or her right to have
the issue of penalty heard as provided in this section.
(b) Upon its own motion or for good cause shown, the board may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of, and confidence in, the specific healing
art.
(c) The issue of penalty shall be heard by an administrative law
judge sitting alone or with a panel of the board, in the discretion
of the board. A licensee may request a hearing on the penalty and
that hearing shall be held within 90 days from the date of the
request. If the order suspending or revoking the license or authority
to practice is overturned on appeal, any discipline ordered pursuant
to this section shall automatically cease. Upon a showing to the
administrative law judge or panel by the licensee that the
out-of-state action is not a basis for discipline in California, the
suspension shall be rescinded. If an accusation for permanent
discipline is not filed within 90 days of the suspension imposed
pursuant to this section, the suspension shall automatically
terminate.
(d) The record of the proceedings that resulted in the suspension
or revocation of the licensee's out-of-state license or authority to
practice, including a transcript of the testimony therein, may be
received in evidence.
(e) This section shall not apply to a licensee who maintains his
or her primary practice in California, as evidenced by having
maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a licensee's license from being
suspended pursuant to any other provision of law.
(f) This section shall not apply to a licensee whose license has
been surrendered, whose only discipline is a medical staff
disciplinary action at a federal hospital and not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
licensee remains subject to terms of probation or other discipline.
(g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the licensee by another state.
(h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a licensee's license or
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the licensee may request that the hearing on the
penalty conducted pursuant to subdivision (c) be held at the same
time as a hearing on the accusation.
(i) A board that complies with Section 2310 shall not be subject
to the requirements of this section.
SEC. 188. SEC. 164. Section 4992.33
of the Business and Professions Code is amended to read:
4992.33. (a) The board shall revoke any license issued under this
chapter upon a decision made in accordance with the procedures set
forth in Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2 of the Government Code, that contains any
finding of fact that the licensee or registrant engaged in any act of
sexual contact, as defined in Section 729, when that act is with a
patient, or with a former patient when the relationship was
terminated primarily for the purpose of engaging in that act. The
revocation shall not be stayed by the administrative law judge or the
board.
(b) Except as otherwise provided, any proposed decision or
decision issued under this chapter in accordance with the procedures
set forth in Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2 of the Government Code, that contains any
finding of fact that the licensee has committed a sex offense, shall
contain an order revoking the license. The proposed decision or
decision shall not contain any order staying the revocation of the
licensee.
(c) As used in this section, the term sex offense
"sex offense " shall mean any of the
following:
(1) Any offense for which registration is required by Section 290
of the Penal Code or a finding that a person committed such an act.
(2) Any offense described in Section 243.4(a)-(d), 261.5,
313.1, or 647(a) or (d) of the Penal Code
subdivisions (a) to (d), inclusive, of Section 243.4, Section 261.5
or 313.1, or subdivision (a) or (d) of Section 647 of the Penal Code,
or a finding that a person committed such an act.
(3) Any attempt to commit any of the offenses specified in this
section.
(4) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
SEC. 189. SEC. 165. Section 12529.8
is added to the Government Code, to read:
12529.8. (a) Any healing arts board described in Division 2
(commencing with Section 500) of , the Business
and Professions Code may utilize the model prescribed in Sections
12529 to 12529.6, inclusive, for the investigation and prosecution of
some or all of its enforcement actions and may utilize the services
of the Department of Justice Health Quality Enforcement Section or
the licensing section. If a board elects to proceed pursuant to this
section and utilizes the services of the licensing section, the
Department of Justice shall assign attorneys to work on location at
the licensing unit of the Division of Investigation of the Department
of Consumer Affairs.
(b) The report requirements contained in Section 12529.7 shall
apply to any healing arts board that utilizes those provisions for
enforcement.
(c) This section shall not apply to any healing arts board listed
in subdivision (a) of Section 12529.
SEC. 190. (a) It is the intent of the
Legislature that the Department of Consumer Affairs shall, on or
before December 31, 2012, establish an enterprise information
technology system necessary to electronically create and update
healing arts license information, track enforcement cases, and
allocate enforcement efforts pertaining to healing arts licensees.
The Legislature intends the system to be designed as an integrated
system to support all business automation requirements of the
department's licensing and enforcement functions.
(b) The Legislature also intends the department to enter into
contracts for telecommunication, programming, data analysis, data
processing, and other services necessary to develop, operate, and
maintain the enterprise information technology system.
SEC. 191. SEC. 16 6. No
reimbursement is required by this act pursuant to Section 6 of
Article XIII B of the California Constitution for certain costs that
may be incurred by a local agency or school district because, in that
regard, this act creates a new crime or infraction, eliminates a
crime or infraction, or changes the penalty for a crime or
infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIII B of the California Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.
