California Assembly Bill AB456 Amended / Bill

 BILL NUMBER: AB 456AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 14, 2009 INTRODUCED BY Assembly Member Emmerson FEBRUARY 24, 2009  An act relating to state government.   An act to amend Sections 1695, 1695.1, 1695.5, 1695.6, 1696, 1697, 1698, and 1699 of, and to add Section 1699.5 to, the Business and Professions Code, relating to dentistry.  LEGISLATIVE COUNSEL'S DIGEST AB 456, as amended, Emmerson.  State agencies: period review. .   Dentistry: diversion program.   The Dental Practice Act provides for the licensure and regulation of dentists by the Dental Board of California. The act requires the Dental Board of California to establish and administer a diversion program for the rehabilitation of licensees whose competency is impaired due to the abuse of drugs or alcohol, and imposes certain duties on diversion evaluation committees and the program manager related to accepting or denying licensees into, or terminating licensees from, the program, reviewing and designating treatment facilities, reviewing licensee participation, and performing other related duties. Existing law requires the board to close any investigation of a licensee whose investigation is based primarily on the self-administration or possession of certain controlled substances or drugs if the licensee enters and successfully completes a diversion program, and requires the reopening of the investigation upon withdrawal or termination from the program. Existing law requires that all participating licensees sign an agreement of understanding that withdrawal or termination from the diversion program at a time when a committee determines that the licensee is a threat to the public's health and safety shall result in the use of the licensee's diversion treatment records in a disciplinary or criminal proceeding. Existing law authorizes the program manager to request execution of a similar statement of understanding that alleged violations of the act by a licensee entering a diversion program may still be investigated. Existing law authorizes a committee to convene public meetings in closed sessions if considering reports pertaining to licensees requesting or participating in a diversion program and only to the extent necessary to protect the privacy of a licensee. Existing law requires a licensee who requests participation in a diversion program to agree to cooperate with the treatment program designed by the committee and to bear all costs of the program, unless the cost is waived by the board.   This bill would declare the intent of the Legislature that the diversion program established by the Dental Board of California be implemented as a monitoring program for licensees whose participation is a component of a probationary or disciplinary action. The bill would delete the requirement that the board close investigations of licensees who self-administer or possess controlled substances or drugs and who enter and successfully complete a diversion program, and instead authorize the board to determine when to close or reopen investigations of those licensees, as specified. The bill would authorize a diversion evaluation committee to report to the board's enforcement program any licensee who is denied admission into, or terminated from, the diversion program, and who is deemed by the committee to present a threat to the public or his or her own health and safety. The bill would authorize the use of that licensee's diversion records in any disciplinary or criminal proceeding, and would delete the provisions that require or authorize the execution of a statement of understanding. The bill would also require the diversion evaluation committee to report to the board's enforcement program certain licensees engaging in acts of substantial noncompliance, as determined by the diversion evaluation committee, and would authorize the use of those licensees records for purposes of discipline, as specified. The bill would also expand the committee' s authority to convene a closed session meeting as applied to matters relating to a licensee requesting or participating in a diversion program, and would require a waiver of licensee confidentiality under certain circumstances, including upon filing by the licensee of a lawsuit against the board relating to the diversion program. The bill would toll the statute of limitations for filing an accusation against a licensee during the time period a licensee is participating in the diversion program, and would delete the authority of the board to waive costs attributed to a licensee participating in a program. The bill would also make other nonsubstantive, technical changes to related provisions.   Existing law authorizes the creation of various state agencies.   This bill would state the intent of the Legislature to enact legislation establishing a periodic review of all state agencies.  Vote: majority. Appropriation: no. Fiscal committee:  no   yes  . State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 1695 of the   Business and Professions Code  is amended to read:  1695. It is the intent of the Legislature that the  Dental  Board of  Dental Examiners of  California seek ways and means to identify and rehabilitate  licentiates   licensees  whose competency may be impaired due to abuse of  , or dependency on,  dangerous drugs or alcohol, so that  licentiates   licensees  so afflicted may be treated and returned to the practice of dentistry in a manner  which   that  will not endanger the public health and safety. It is also the intent of the Legislature that the  Dental  Board of  Dental Examiners of  California shall implement this legislation in part by establishing a diversion program as  both  a voluntary alternative approach to traditional disciplinary actions  and as   a monitoring program for licensees whose participation is a component of a probationary or disciplinary action  .  SEC. 2.   Section 1695.1 of the   Business and Professions Code   is amended to read:  1695.1. As used in this article: (a) "Board" means the  Dental  Board of  Dental Examiners of  California. (b) "Committee" means a diversion evaluation committee created by this article. (c) "Program manager" means the staff manager of the diversion program, as designated by the executive officer of the board. The program manager shall have background experience in dealing with substance abuse issues.  SEC. 3.   Section 1695.5 of the   Business and Professions Code   is amended to read:  1695.5. (a) The board shall establish criteria for the acceptance, denial, or termination of  licentiates   licensees  in a diversion program. Unless ordered by the board as a condition of  licentiate disciplinary  probation  or other disciplinary action  , only those  licentiates   licensees  who have voluntarily requested diversion treatment and supervision by a committee shall participate in a diversion program. (b) A  licentiate   licensee  who is not the subject of a current investigation may self-refer to the diversion program on a confidential basis, except as provided in subdivision (f). (c) A  licentiate   licensee  under current investigation by the board may also request entry into the diversion program by contacting the board's Diversion Program Manager. The Diversion Program Manager may refer the  licentiate   licensee  requesting participation in the program to a diversion evaluation committee for evaluation of eligibility.  Prior to authorizing a licentiate to enter into the diversion program, the Diversion Program Manager may require the licentiate, while under current investigation for any violations of the Dental Practice Act or other violations, to execute a statement of understanding that states that the licentiate understands that his or her violations of the Dental Practice Act or other statutes that would otherwise be the basis for discipline, may still be investigated and the subject of disciplinary action.  (d) If the reasons for a current investigation of a  licentiate   licensee  are based primarily on the self-administration of any controlled substance or dangerous drugs or alcohol under Section 1681  of the Business and Professions Code  , or the illegal possession, prescription, or nonviolent procurement of any controlled substance or dangerous drugs for self-administration that does not involve actual, direct harm to the public, the board  shall   may  close the investigation without further action if the  licentiate   licensee  is accepted into the board's diversion program and successfully completes the requirements of the program. If  an investigation is closed and  the  licentiate   licensee  withdraws or is terminated from the program by a diversion evaluation committee, and the termination is approved by the program manager, the investigation  shall   may  be reopened and disciplinary action imposed, if warranted, as determined by the board. (e) Neither acceptance nor participation in the diversion program shall preclude the board from investigating or continuing to investigate, or taking disciplinary action or continuing to take disciplinary action against, any  licentiate   licensee  for any unprofessional conduct committed before, during, or after participation in the diversion program. (f)  All licentiates shall sign an agreement of understanding that the withdrawal or termination from the diversion program at a time when a diversion evaluation committee determines the licentiate presents a threat to the public's health and safety shall result in the utilization by the board of diversion treatment records in disciplinary or criminal proceedings   If a diversion evaluation commi   ttee determines that a licensee, who is denied admission into the diversion program or terminated from the diversion program, presents a threat to the public or his or her own health and safety, the committee shall report the name and license number of the licensee, along with   a copy of all diversion records for that licensee, to the board' s enforcement program. The board may use any of the records it receives under this subdivision in any disciplinary or criminal proceeding  . (g) Any  licentiate   licensee  terminated from the diversion program for failure to comply with program requirements is subject to disciplinary action by the board for acts committed before, during, and after participation in the diversion program. A  licentiate   licensee  who has been under investigation by the board and has been terminated from the diversion program by a diversion evaluation committee shall be reported by the diversion evaluation committee to the board.  SEC. 4.   Section 1695.6 of the   Business and Professions Code   is amended to read:  1695.6. A committee created under this article operates under the direction of the program manager. The program manager has the primary responsibility to review and evaluate recommendations of the committee. Each committee shall have the following duties and responsibilities: (a) To evaluate those  licentiates   licensees  who request to participate in the diversion program according to the guidelines prescribed by the board and to make recommendations. In making the recommendations, a committee shall consider the recommendations of any  licentiates   licensees  designated by the board to serve as consultants on the admission of the  licentiate   lice   nsee  to the diversion program. (b) To review and designate those treatment facilities to which  licentiates   licensees  in a diversion program may be referred. (c) To receive and review information concerning a  licentiate   licensee  participating in the program. (d) To consider in the case of each  licentiate   licensee  participating in a program whether he or she may with safety continue or resume the practice of dentistry. (e) To perform such other related duties, under the direction of the board or program manager, as the board may by regulation require.  SEC. 5.   Section 1696 of the   Business and Professions Code   is amended to read:  1696. Notwithstanding the provisions of Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code, relating to public meetings, a committee may convene in closed session to consider  reports pertaining   matters relating  to any  licentiate   licensee  requesting or participating in a diversion program. A  committee shall only convene in closed session to the extent that it is necessary to protect the privacy of such a licentiate   meeting that will be convened entirely in closed session need not comply with Section 11125 or 11126.3 of the Government Code  .  SEC. 6.   Section 1697 of the   Business and Professions Code   is amended to read:  1697. Each  licentiate   licensee  who requests participation in a diversion program shall agree to cooperate with the treatment program designed by the committee and approved by the program manager and to bear all costs related to the program  , unless the cost is waived by the board  . Any failure to comply with the provisions of a treatment program may result in termination of the  licentiate's   licensee's  participation in a program.  SEC. 7.   Section 1698 of the   Business and Professions Code   is amended to read:  1698. (a) After the committee and the program manager in their discretion have determined that a  licentiate   licensee  has been rehabilitated and the diversion program is completed, the committee shall purge and destroy all records pertaining to the  licentiate's   licensee's  participation in a diversion program. (b) Except as authorized by subdivision (f) of Section 1695.5  and subdivisions (c) and (d)  , all board and committee records and records of proceedings pertaining to the treatment of a  licentiate   licensee  in a program shall be kept confidential and are not subject to discovery or subpoena.  (c) Notwithstanding any other provision of law, the diversion evaluation committee shall report to the board's enforcement program, for any licensee who is participating in the diversion program as a result of his or her license being placed on probation or as a result of a referral related to a board investigation pursuant to subdivision (d) of Section 1695.5, all acts of substantial noncompliance by the licensee as determined by the diversion evaluation committee. The report shall be made no more than 24 hours after the diversion evaluation committee makes its determination. If that licensee does not successfully complete the diversion program, all diversion records for that licensee shall be provided to the board's enforcement program and may be used at the board's discretion to discipline the licensee.   (d) A licensee shall be deemed to have waived any rights granted by any law or regulation relating to confidentiality under the program, if he or she does any of the following:   (1) Presents information relating to any aspect of the diversion program during any stage of the disciplinary process subsequent to the filing of an accusation, statement of issues, or petition to compel an examination pursuant to Article 12.5 (commencing with Section 820) of Chapter 1. The waiver under this paragraph shall be limited to information necessary to verify or refute any information disclosed by the licensee.   (2) Files a lawsuit against the board relating to any aspect of the diversion program.   (3) Claims in defense to a disciplinary action, based on a complaint that led to the licensee's participation in the diversion program, that he or she was prejudiced by the length of time that passed between the alleged violation and the filing of the accusation. The waiver under this paragraph shall be limited to information necessary to document the length of time the licensee participated in the diversion program.   SEC. 8.   Section 1699 of the   Business and Professions Code   is amended to read:  1699. The board shall provide for the representation of any person making reports to a committee or the board under this article in any action for defamation for reports or information given to the committee or the board regarding a  licentiate's   licensee's  participation in the diversion program.  SEC. 9.   Section 1699.5 is added to the   Business and Professions Code   , to read:   1699.5. Notwithstanding Section 1670.2, the statute of limitations relating to the filing of an accusation against a licensee shall be tolled during the time period a licensee is participating in the diversion program.   SECTION 1.   It is the intent of the Legislature to enact legislation establishing a periodic review of all state agencies.