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AB-1636 Physician’s and surgeon’s certificate: registered sex offenders.(2021-2022)

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Date Published: 01/12/2022 09:00 PM
AB1636:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1636


Introduced by Assembly Member Akilah Weber
(Principal coauthor: Assembly Member Muratsuchi)
(Coauthor: Senator Hurtado)

January 12, 2022


An act to amend Sections 2221, 2232, and 2307 of the Business and Professions Code, relating to healing arts.


LEGISLATIVE COUNSEL'S DIGEST


AB 1636, as introduced, Akilah Weber. Physician’s and surgeon’s certificate: registered sex offenders.
Existing law, the Medical Practice Act, establishes the Medical Board of California for the licensure, regulation, and discipline of physicians and surgeons. Existing law requires the board to deny a physician’s and surgeon’s certificate to an applicant who is required to register as a sex offender, except as specified. Existing law makes an applicant ineligible to reapply for a physician’s and surgeon’s certificate for a minimum of 3 years from the effective date of the denial of their application, except that the board, in its discretion and for good cause demonstrated, may permit reapplication after not less than one year has elapsed from the effective date of the denial.
This bill, instead, would require the board to deny a physician’s and surgeon’s certificate to an applicant who has been required to register as a sex offender, except as provided. The bill, additionally, would require the board to deny a physician’s and surgeon’s certificate to an applicant if the applicant was convicted in any court in or outside of this state of any offense that, if committed or attempted in this state, based on the elements of the convicted offense, would have been punishable as one or more of the offenses for which a specified provision of the Sex Offender Registration Act requires the offender to register as a sex offender, and the applicant engaged in the offense with a patient or client, or with a former patient or client if the relationship was terminated primarily for the purpose of committing the offense. The bill would also require the board to deny a physician’s and surgeon’s certificate to an applicant if a licensing board in or outside of this state formally disciplined the applicant for conduct that, if committed in this state by a physician and surgeon, would have been cause for discipline before the board based on professional misconduct constituting an act of sexual abuse, misconduct, or relations with a patient or based on sexual exploitation, as specified. The bill would make an applicant ineligible to reapply for a physician’s and surgeon’s certificate if the board has previously denied the applicant a physician’s and surgeon’s certificate pursuant to the above-described provisions.
Existing law requires the board to automatically revoke the license of any person who has been required to register as a sex offender, as specified. Existing law exempts from that provision a person who has been relieved, as specified, of their duty to register as a sex offender, or whose duty to register has otherwise been formally terminated under California law.
This bill would remove the above-described exemption from the provision relating to automatic revocation of a license of a registered sex offender. The bill, additionally, would require the board to automatically revoke a license if the licensee has been convicted, as specified, in any court in or outside of this state of an offense that, if committed or attempted in this state, based on the elements of the convicted offense, would have been punishable as an offense for which a specified provision of the Sex Offender Registration Act requires registration as a sex offender, and the licensee engaged in the offense with a patient or client, or with a former patient or client if the relationship was terminated primarily for the purpose of committing the offense.
Under existing law, 5 years after the effective date of the revocation and 3 years after successful discharge from parole, probation, or both parole and probation, as specified, an individual whose license was revoked after January 1, 1947, and before January 1, 2005, for having been required to register as a sex offender is authorized to petition a superior court to hold a hearing to determine whether the individual no longer poses a possible risk to patients, as specified. If the court finds that the individual no longer poses a possible risk to patients and there are no other underlying reasons for which the board pursued disciplinary action, existing law requires the court to order the board to reinstate the individual’s license, as specified. Existing law authorizes the board to issue a probationary license to that person, as specified. If the court finds that the individual continues to pose a possible risk to patients, existing law requires the court to deny relief and prohibits the individual from filing a subsequent petition based on the same conviction.
This bill would remove the above-described provisions.
Existing law authorizes a person whose physician’s and surgeon’s certificate has been surrendered while under investigation or while charges are pending or whose certificate has been revoked or suspended or placed on probation to petition the board for reinstatement or modification of penalty, as specified.
This bill would, as an exemption to the above-described provision, prohibit the board from reinstating a person’s certificate that has been surrendered or revoked based on a finding by the board that the person committed an act of sexual abuse, misconduct, or relations with a patient or sexual exploitation, as specified. The bill, additionally, would prohibit the board from reinstating a person’s certificate if the person was convicted in any court in or outside of this state of any offense that, if committed or attempted in this state, based on the elements of the convicted offense, would have been punishable as one or more of the offenses for which a specified provision of the Sex Offender Registration Act requires the offender to register as a sex offender, and the person engaged in the offense with a patient or client, or with a former patient or client if the relationship was terminated primarily for the purpose of committing the offense. The bill would prohibit the board from reinstating the certificate of a person who has been required to register as a sex offender, as specified, regardless of whether the conviction has been appealed.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 2221 of the Business and Professions Code is amended to read:

2221.
 (a) The board may deny a physician’s and surgeon’s certificate to an applicant guilty of unprofessional conduct or of any cause that would subject a licensee to revocation or suspension of their license. The board, in its sole discretion, may issue a probationary physician’s and surgeon’s certificate to an applicant subject to terms and conditions, including, but not limited to, any of the following conditions of probation:
(1) Practice limited to a supervised, structured environment where the licensee’s activities shall be supervised by another physician and surgeon.
(2) Total or partial restrictions on drug prescribing privileges for controlled substances.
(3) Continuing medical or psychiatric treatment.
(4) Ongoing participation in a specified rehabilitation program.
(5) Enrollment and successful completion of a clinical training program.
(6) Abstention from the use of alcohol or drugs.
(7) Restrictions against engaging in certain types of medical practice.
(8) Compliance with all provisions of this chapter.
(9) Payment of the cost of probation monitoring.
(b) The board may modify or terminate the terms and conditions imposed on the probationary certificate upon receipt of a petition from the licensee. The board may assign the petition to an administrative law judge designated in Section 11371 of the Government Code. After a hearing on the petition, the administrative law judge shall provide a proposed decision to the board.
(c) The board shall deny a physician’s and surgeon’s certificate to an applicant who is under any of the following circumstances:
(1) The applicant has been required to register as a sex offender pursuant to Section 290 of the Penal Code. This subdivision paragraph does not apply to an applicant who is has been 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.
(2) (A) The applicant was convicted in any court in or outside of this state of any offense that, if committed or attempted in this state, based on the elements of the convicted offense, would have been punishable as one or more of the offenses described in subdivision (c) of Section 290 of the Penal Code, and the applicant engaged in the offense with a patient or client, or with a former patient or client if the relationship was terminated primarily for the purpose of committing the offense. This paragraph does not apply to an applicant 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.
(B) A plea or verdict of guilty or a conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of this paragraph. The record of conviction shall be conclusive evidence of the fact that the conviction occurred.
(3) A licensing board in or outside of this state formally disciplined the applicant for conduct that, if committed in this state by a physician and surgeon, would have been cause for discipline before the board based on professional misconduct constituting an act of sexual abuse, misconduct, or relations with a patient pursuant to Section 726 or based on sexual exploitation as defined in subdivision (a) of Section 729.
(d) An applicant shall not be eligible to reapply for a physician’s and surgeon’s certificate if the board has previously denied the applicant a physician’s and surgeon’s certificate pursuant to subdivision (c).

(d)An

(e) Except as provided in subdivision (d), an applicant shall not be eligible to reapply for a physician’s and surgeon’s certificate for a minimum of three years from the effective date of the denial of their application, except that the board, in its discretion and for good cause demonstrated, may permit reapplication after not less than one year has elapsed from the effective date of the denial.

(e)

(f) The board shall disclose a probationary physician’s and surgeon’s certificate issued pursuant to this section and the operative statement of issues to an inquiring member of the public and shall post the certificate and statement on the board’s internet website for 10 years from issuance.

SEC. 2.

 Section 2232 of the Business and Professions Code is amended to read:

2232.
 (a) (1) Except as provided in subdivisions (c), (d), and (e), subdivision (c), the board shall automatically revoke the license of any person who, a license under either of the following circumstances:
(A) The licensee, at any time after January 1, 1947, has been convicted in any court in or outside of this state of any offense that, if committed or attempted in this state, based on the elements of the convicted offense, would have been punishable as one or more of the offenses described in subdivision (c) of Section 290 of the Penal Code, and the licensee engaged in the offense with a patient or client, or with a former patient or client if the relationship was terminated primarily for the purpose of committing the offense.
(B) The licensee, at any time after January 1, 1947, has been required to register as a sex offender pursuant to the provisions of Section 290 of the Penal Code, regardless of whether the related conviction has been appealed. The
(2) The board shall notify the licensee of the license revocation and of his or her their right to elect to have a hearing as provided in subdivision (b).
(b) Upon revocation of the physician’s and surgeon’s certificate, the holder of the certificate may request a hearing within 30 days of the revocation. The proceeding shall be conducted in accordance with the Administrative Procedure Act (Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code).
(c) This section shall not apply to a person 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.

(d)(1)Five years after the effective date of the revocation and three years after successful discharge from parole, probation, or both parole and probation if under simultaneous supervision, an individual who after January 1, 1947, and prior to January 1, 2005, was subject to subdivision (a), may petition the superior court, in the county in which the individual has resided for, at minimum, five years prior to filing the petition, to hold a hearing within one year of the date of the petition, in order for the court to determine whether the individual no longer poses a possible risk to patients. The individual shall provide notice of the petition to the Attorney General and to the board at the time of its filing. The Attorney General and the board shall present written and oral argument to the court on the merits of the petition.

(2)If the court finds that the individual no longer poses a possible risk to patients, and there are no other underlying reasons for which the board pursued disciplinary action, the court shall order, in writing, the board to reinstate the individual’s license within 180 days of the date of the order. The board may issue a probationary license to a person subject to this paragraph subject to terms and conditions, including, but not limited to, any of the conditions of probation specified in Section 2221.

(3)If the court finds that the individual continues to pose a possible risk to patients, the court shall deny relief. The court’s decision shall be binding on the individual and the board, and the individual shall be prohibited from filing a subsequent petition under this section based on the same conviction.

(e)This section shall not apply to a person 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.

(d) A plea or verdict of guilty or a conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of this section. The record of conviction shall be conclusive evidence of the fact that the conviction occurred.

(f)

(e) If the related conviction of the certificate holder is overturned on appeal, the revocation 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.

(g)

(f) The other provisions of this article setting forth a procedure for the revocation of a physician’s and surgeon’s certificate shall not apply to proceedings conducted pursuant to this section.

SEC. 3.

 Section 2307 of the Business and Professions Code is amended to read:

2307.
 (a) A Except as provided in subdivision (i), a person whose certificate has been surrendered while under investigation or while charges are pending or whose certificate has been revoked or suspended or placed on probation, may petition the board for reinstatement or modification of penalty, including modification or termination of probation.
(b) The person may file the petition after a period of not less than the following minimum periods have elapsed from the effective date of the surrender of the certificate or the decision ordering that disciplinary action:
(1) At least three years for reinstatement of a license surrendered or revoked for unprofessional conduct, except that the board may, for good cause shown, specify in a revocation order that a petition for reinstatement may be filed after two years.
(2) At least two years for early termination of probation of three years or more.
(3) At least one year for modification of a condition, or reinstatement of a license surrendered or revoked for mental or physical illness, or termination of probation of less than three years.
(c) The petition shall state any facts as may be required by the board. The petition shall be accompanied by at least two verified recommendations from physicians and surgeons licensed in any state who have personal knowledge of the activities of the petitioner since the disciplinary penalty was imposed.
(d) The petition may be heard by a panel of the board. The board may assign the petition to an administrative law judge designated in Section 11371 of the Government Code. After a hearing on the petition, the administrative law judge shall provide a proposed decision to the board or the California Board of Podiatric Medicine, as applicable, which shall be acted upon in accordance with Section 2335.
(e) The panel of the board or the administrative law judge hearing the petition may consider all activities of the petitioner since the disciplinary action was taken, the offense for which the petitioner was disciplined, the petitioner’s activities during the time the certificate was in good standing, and the petitioner’s rehabilitative efforts, general reputation for truth, and professional ability. The hearing may be continued from time to time as the administrative law judge designated in Section 11371 of the Government Code finds necessary.
(f) The administrative law judge designated in Section 11371 of the Government Code reinstating a certificate or modifying a penalty may recommend the imposition of any terms and conditions deemed necessary.
(g) No petition shall be considered while the petitioner is under sentence for any criminal offense, including any period during which the petitioner is on court-imposed probation or parole. No petition shall be considered while there is an accusation or petition to revoke probation pending against the person. The board may deny without a hearing or argument any petition filed pursuant to this section within a period of two years from the effective date of the prior decision following a hearing under this section.
(h) This section is applicable to and may be carried out with regard to licensees of the California Board of Podiatric Medicine. In lieu of two verified recommendations from physicians and surgeons, the petition shall be accompanied by at least two verified recommendations from doctors of podiatric medicine licensed in any state who have personal knowledge of the activities of the petitioner since the date the disciplinary penalty was imposed.
(i) (1) The board shall not reinstate the certificate of a person under any of the following circumstances:
(A) The person’s certificate has been surrendered or revoked based on a finding by the board that the person committed an act of sexual abuse, misconduct, or relations with a patient pursuant to Section 726 or sexual exploitation as defined in subdivision (a) of Section 729.
(B) The person was convicted in a court in or outside of this state of any offense that, if committed or attempted in this state, based on the elements of the convicted offense, would have been punishable as one or more of the offenses described in subdivision (c) of Section 290 of the Penal Code, and the person engaged in the offense with a patient or client, or with a former patient or client if the relationship was terminated primarily for the purpose of committing the offense.
(C) The person has been required to register as a sex offender pursuant to the provisions of Section 290 of the Penal Code, regardless of whether the conviction has been appealed.
(2) A plea or a verdict of guilty or a conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of this section. The record of conviction shall be conclusive evidence of the fact that the conviction occurred.
(3) This subdivision does not apply to an applicant 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.

(i)

(j) Nothing in this section shall be deemed to alter Sections 822 and 823.