BILL NUMBER: SB 1172AMENDED BILL TEXT AMENDED IN SENATE APRIL 27, 2010 AMENDED IN SENATE APRIL 12, 2010 INTRODUCED BY Senator Negrete McLeod FEBRUARY 18, 2010 An act to amend Section 156.1 of, and to add Sections 315.2, 315.4, and 315.6 to, the Business and Professions Code, relating to regulatory boards. LEGISLATIVE COUNSEL'S DIGEST SB 1172, as amended, Negrete McLeod. Regulatory boards: diversion programs. (1) Existing law provides for the regulation of specified professions and vocations by various boards, as defined, within the Department of Consumer Affairs. Under existing law, individuals or entities contracting with the department or any board within the department for the provision of services relating to the treatment and rehabilitation of licentiates impaired by alcohol or dangerous drugs are required to retain all records and documents pertaining to those services for 3 years or until they are audited, whichever occurs first. Under existing law, those records and documents are required to be kept confidential and are not subject to discovery or subpoena. This bill would specify that those records and documents shall be kept for 3 years and are not subject to discovery or subpoena unless otherwise expressly provided by lawand would prohibit the licentiate from waiving confidentiality. The bill would require the department or board contracting for those services to have an audit conducted at least once every 3 years by a specified independent reviewer or review team, would require that reviewer or review team to prepare an audit report and to submit it to the Legislature, the department, and the board by June 30 every 3 years, with the first report due in 2013, and would require the department, the contract vendor, and the board to respond to the report, as specified. (2) Existing law provides for the licensure and regulation of various healing arts by boards within the Department of Consumer Affairs. Under existing law, these boards are authorized to issue, deny, suspend, and revoke licenses based on various grounds and to take disciplinary action against their licensees. Existing law establishes diversion and recovery programs to identify and rehabilitate dentists, osteopathic physicians and surgeons, physical therapists, physical therapy assistants, registered nurses, physician assistants, pharmacists and intern pharmacists, veterinarians, and registered veterinary technicians whose competency may be impaired due to, among other things, alcohol and drug abuse. The bill would require a healing arts board to order a licensee to cease practice if the licensee tests positive for any prohibited substance under the terms of the licensee's probation or diversion program. The bill would also authorize a board to adopt regulations authorizing it to order a licensee on probation or in a diversion program to cease practice for major violations and when the board orders a licensee to undergo a clinical diagnostic evaluation, as specified. Except as provided, the bill would prohibit a healing arts board from disclosing to the public that a licensee is participating in a board diversion program. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 156.1 of the Business and Professions Code is amended to read: 156.1. (a) Notwithstanding any other provision of law, individuals or entities contracting with the department or any board within the department for the provision of services relating to the treatment and rehabilitation of licentiates impaired by alcohol or dangerous drugs shall retain all records and documents pertaining to those services until such time as these records and documents have been reviewed for audit pursuant to subdivision (c). These records and documents shall be retained for three years from the date of the last treatment or service rendered to that licentiate, after which time the records and documents may be purged and destroyed by the contract vendor. This provision shall supersede any other provision of law relating to the purging or destruction of records pertaining to those treatment and rehabilitation programs. (b) Unless otherwise expressly provided by statute or regulation, all records and documents pertaining to services for the treatment and rehabilitation of licentiates impaired by alcohol or dangerous drugs provided by any contract vendor to the department or to any board within the department shall be kept confidential and are not subject to discovery or subpoena.A licentiate may not waive confidentiality pursuant to this subdivision.(c) (1) An external independent audit of an individual or entity contracting with the department pursuant to subdivision (a) shall be conducted at least once every three years by a qualified, independent reviewer or review team from outside the department with no real or apparent conflict of interest with the contractor providing the services. The independent reviewer or review team shall be competent in the professional practice of internal auditing and assessment processes. (2) The independent reviewer or review team shall prepare an audit report that assesses the contractor's performance in adhering to any standards established by the department or the board and shall submit that report to the Legislature, the department, and the board by June 30 every three years, with the first report due in 2013. The audit report shall make findings and identify any material inadequacies, deficiencies, irregularities, or any other noncompliance with the terms of the contract. (3) The department, contract vendor, and the board shall respond to the assessment and findings in the audit report prior to submission to the Legislature. (d) With respect to all other contracts for services with the department or any board within the department other than those set forth in subdivision (a), the director or chief deputy director may request an examination and audit by the department's internal auditor of all performance under the contract. For this purpose, all documents and records of the contract vendor in connection with such performance shall be retained by such vendor for a period of three years after final payment under the contract. Nothing in this section shall affect the authority of the State Auditor to conduct any examination or audit under the terms of Section 8546.7 of the Government Code. SEC. 2. Section 315.2 is added to the Business and Professions Code, to read: 315.2. (a) A board, as described in Section 315, shall order a licensee of the board to cease practice if the licensee tests positive for any substance that is prohibited under the terms of the licensee's probation or diversion program. (b) An order to cease practice under this section shall not be governed by the provisions of Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. (c) A cease practice order under this section shall not constitute disciplinary action.(d) A licensee may petition to return to practice pursuant to the uniform and specific standards adopted and authorized under Section 315.SEC. 3. Section 315.4 is added to the Business and Professions Code, to read: 315.4. (a) A board, as described in Section 315, may adopt regulations authorizing the board to order a licensee on probation or in a diversion program to cease practice for major violations and when the board orders a licensee to undergo a clinical diagnostic evaluation pursuant to the uniform and specific standards adopted and authorized under Section 315. (b) An order to cease practice under this section shall not be governed by the provisions of Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. (c) A cease practice order under this section shall not constitute disciplinary action.(d) The regulations shall also include provisions for a licensee to petition to return to practice pursuant to the uniform and specific standards adopted and authorized under Section 315.SEC. 4. Section 315.6 is added to the Business and Professions Code, to read: 315.6. Unless otherwise authorized by statute or regulation, a board, as described in Section 315, shall not disclose to the public that a licensee is participating in a board diversion program unless participation was ordered as a term of probation. However, a board shall disclose to the public any restrictions that are placed on a licensee's practice as a result of the licensee's participation in a board diversion program provided that the disclosure does not contain information linking the restriction to the licensee's participation in the board's diversion program.