Bill Text: CA AB809 | 2013-2014 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Healing arts: telehealth.
Spectrum: Bipartisan Bill
Status: (Passed) 2014-09-18 - Chaptered by Secretary of State - Chapter 404, Statutes of 2014. [AB809 Detail]
Download: California-2013-AB809-Amended.html
Bill Title: Healing arts: telehealth.
Spectrum: Bipartisan Bill
Status: (Passed) 2014-09-18 - Chaptered by Secretary of State - Chapter 404, Statutes of 2014. [AB809 Detail]
Download: California-2013-AB809-Amended.html
BILL NUMBER: AB 809 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 3, 2013
INTRODUCED BY Assembly Member Logue
FEBRUARY 21, 2013
An act to amend Sections 1626.2, 2290.5, 4980.01, 4982, 4989.54,
4992.3, 4996, and 4999.90 of the Business and Professions Code,
relating to telehealth, and declaring the urgency thereof, to take
effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 809, as amended, Logue. Healing arts: telehealth.
Existing law requires a health care provider, as defined, prior to
the delivery of health care services via telehealth, as defined, to
verbally inform the patient that telehealth may be used and obtain
verbal consent from the patient for this use. Existing law also
provides that failure to comply with this requirement constitutes
unprofessional conduct.
This bill would delete those provisions
instead require the health care provider at the originating site to
provide the patient with a waiver for the course of treatment
involving telehealth services to obtain informed consent for the
agreed upon course of treatment. The bill would require the signed
waiver to be contained in the patient's medical record
. The bill would make additional conforming changes.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: no. State-mandated
local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1626.2 of the Business and Professions Code is
amended to read:
1626.2. A dentist licensed under this chapter is a licentiate for
purposes of paragraph (2) of subdivision (a) of Section 805, and
thus is a health care practitioner subject to the provisions of
Section 2290.5.
SEC. 2. Section 2290.5 of the Business and Professions Code is
amended to read:
2290.5. (a) For purposes of this division, the following
definitions shall apply:
(1) "Asynchronous store and forward" means the transmission of a
patient's medical information from an originating site to the health
care provider at a distant site without the presence of the patient.
(2) "Distant site" means a site where a health care provider who
provides health care services is located while providing these
services via a telecommunications system.
(3) "Health care provider" means a person who is licensed under
this division.
(4) "Originating site" means a site where a patient is located at
the time health care services are provided via a telecommunications
system or where the asynchronous store and forward service
originates.
(5) "Synchronous interaction" means a real-time interaction
between a patient and a health care provider located at a distant
site.
(6) "Telehealth" means the mode of delivering health care services
and public health via information and communication technologies to
facilitate the diagnosis, consultation, treatment, education, care
management, and self-management of a patient's health care while the
patient is at the originating site and the health care provider is at
a distant site. Telehealth facilitates patient self-management and
caregiver support for patients and includes synchronous interactions
and asynchronous store and forward transfers.
(b) Prior to the delivery of health care via telehealth, the
health care provider at the originating site shall provide the
patient with a waiver for the course of treatment involving
telehealth services to obtain informed consent for the agreed upon
course of treatment. The signed waiver shall be contained in the
patient's medical record.
(c) Nothing in this section shall preclude a patient from
receiving in-person health care delivery services during a course of
treatment after agreeing to receive services via telehealth.
(d) The failure of a health care provider to comply with this
section shall constitute unprofessional conduct. Section 2314 shall
not apply to this section.
(b)
(e) This section shall not be construed to alter the
scope of practice of any health care provider or authorize the
delivery of health care services in a setting, or in a manner, not
otherwise authorized by law.
(c)
(f) All laws regarding the confidentiality of health
care information and a patient's rights to his or her medical
information shall apply to telehealth interactions.
(d)
(g) This section shall not apply to a patient under the
jurisdiction of the Department of Corrections and Rehabilitation or
any other correctional facility.
(e)
(h) (1) Notwithstanding any other provision of law and
for purposes of this section, the governing body of the hospital
whose patients are receiving the telehealth services may grant
privileges to, and verify and approve credentials for, providers of
telehealth services based on its medical staff recommendations that
rely on information provided by the distant-site hospital or
telehealth entity, as described in Sections 482.12, 482.22, and
485.616 of Title 42 of the Code of Federal Regulations.
(2) By enacting this subdivision, it is the intent of the
Legislature to authorize a hospital to grant privileges to, and
verify and approve credentials for, providers of telehealth services
as described in paragraph (1).
(3) For the purposes of this subdivision, "telehealth" shall
include "telemedicine" as the term is referenced in Sections 482.12,
482.22, and 485.616 of Title 42 of the Code of Federal Regulations.
SEC. 3. Section 4980.01 of the Business and Professions Code is
amended to read:
4980.01. (a) Nothing in this chapter shall be construed to
constrict, limit, or withdraw the Medical Practice Act, the Social
Work Licensing Law, the Nursing Practice Act, the Licensed
Professional Clinical Counselor Act, or the Psychology Licensing Act.
(b) This chapter shall not apply to any priest, rabbi, or minister
of the gospel of any religious denomination when performing
counseling services as part of his or her pastoral or professional
duties, or to any person who is admitted to practice law in the
state, or who is licensed to practice medicine, when providing
counseling services as part of his or her professional practice.
(c) (1) This chapter shall not apply to an employee working in any
of the following settings if his or her work is performed solely
under the supervision of the employer:
(A) A governmental entity.
(B) A school, college, or university.
(C) An institution that is both nonprofit and charitable.
(2) This chapter shall not apply to a volunteer working in any of
the settings described in paragraph (1) if his or her work is
performed solely under the supervision of the entity, school, or
institution.
(d) A marriage and family therapist licensed under this chapter is
a licentiate for purposes of paragraph (2) of subdivision (a) of
Section 805, and thus is a health care practitioner subject to the
provisions of Section 2290.5.
(e) Notwithstanding subdivisions (b) and (c), all persons
registered as interns or licensed under this chapter shall not be
exempt from this chapter or the jurisdiction of the board.
SEC. 4. Section 4982 of the Business and Professions Code is
amended to read:
4982. The board may deny a license or registration or may suspend
or revoke the license or registration of a licensee or registrant if
he or she has been guilty of unprofessional conduct. Unprofessional
conduct includes, but is not limited to, the following:
(a) The conviction of a crime substantially related to the
qualifications, functions, or duties of a licensee or registrant
under this chapter. The record of conviction shall be conclusive
evidence only of the fact that the conviction occurred. The board may
inquire into the circumstances surrounding the commission of the
crime in order to fix the degree of discipline or to determine if the
conviction is substantially related to the qualifications,
functions, or duties of a licensee or registrant under this chapter.
A plea or verdict of guilty or a conviction following a plea of nolo
contendere made to a charge substantially related to the
qualifications, functions, or duties of a licensee or registrant
under this chapter shall be deemed to be a conviction within the
meaning of this section. The board may order any license or
registration suspended or revoked, or may decline to issue a license
or registration 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 Section 1203.4 of the Penal
Code allowing the person to withdraw a plea of guilty and enter a
plea of not guilty, or setting aside the verdict of guilty, or
dismissing the accusation, information, or indictment.
(b) Securing a license or registration by fraud, deceit, or
misrepresentation on any application for licensure or registration
submitted to the board, whether engaged in by an applicant for a
license or registration, or by a licensee in support of any
application for licensure or registration.
(c) Administering to himself or herself any controlled substance
or using of any of the dangerous drugs specified in Section 4022, or
of any alcoholic beverage to the extent, or in a manner, as to be
dangerous or injurious to the person applying for a registration or
license or holding a registration or license under this chapter, or
to any other person, or to the public, or, to the extent that the use
impairs the ability of the person applying for or holding a
registration or license to conduct with safety to the public the
practice authorized by the registration or license. The board shall
deny an application for a registration or license or revoke the
license or registration of any person, other than one who is licensed
as a physician and surgeon, who uses or offers to use drugs in the
course of performing marriage and family therapy services.
(d) Gross negligence or incompetence in the performance of
marriage and family therapy.
(e) Violating, attempting to violate, or conspiring to violate any
of the provisions of this chapter or any regulation adopted by the
board.
(f) Misrepresentation as to the type or status of a license or
registration held by the person, or otherwise misrepresenting or
permitting misrepresentation of his or her education, professional
qualifications, or professional affiliations to any person or entity.
(g) Impersonation of another by any licensee, registrant, or
applicant for a license or registration, or, in the case of a
licensee, allowing any other person to use his or her license or
registration.
(h) Aiding or abetting, or employing, directly or indirectly, any
unlicensed or unregistered person to engage in conduct for which a
license or registration is required under this chapter.
(i) Intentionally or recklessly causing physical or emotional harm
to any client.
(j) The commission of any dishonest, corrupt, or fraudulent act
substantially related to the qualifications, functions, or duties of
a licensee or registrant.
(k) Engaging in sexual relations with a client, or a former client
within two years following termination of therapy, soliciting sexual
relations with a client, or committing an act of sexual abuse, or
sexual misconduct with a client, or committing an act punishable as a
sexually related crime, if that act or solicitation is substantially
related to the qualifications, functions, or duties of a marriage
and family therapist.
(l) Performing, or holding oneself out as being able to perform,
or offering to perform, or permitting any trainee or registered
intern under supervision to perform, any professional services beyond
the scope of the license authorized by this chapter.
(m) Failure to maintain confidentiality, except as otherwise
required or permitted by law, of all information that has been
received from a client in confidence during the course of treatment
and all information about the client that is obtained from tests or
other means.
(n) Prior to the commencement of treatment, failing to disclose to
the client or prospective client the fee to be charged for the
professional services, or the basis upon which that fee will be
computed.
(o) Paying, accepting, or soliciting any consideration,
compensation, or remuneration, whether monetary or otherwise, for the
referral of professional clients. All consideration, compensation,
or remuneration shall be in relation to professional counseling
services actually provided by the licensee. Nothing in this
subdivision shall prevent collaboration among two or more licensees
in a case or cases. However, no fee shall be charged for that
collaboration, except when disclosure of the fee has been made in
compliance with subdivision (n).
(p) Advertising in a manner that is false, fraudulent, misleading,
or deceptive, as defined in Section 651.
(q) Reproduction or description in public, or in any publication
subject to general public distribution, of any psychological test or
other assessment device, the value of which depends in whole or in
part on the naivete of the subject, in ways that might invalidate the
test or device.
(r) Any conduct in the supervision of any registered intern,
associate clinical social worker, or trainee by any licensee that
violates this chapter or any rules or regulations adopted by the
board.
(s) Performing or holding oneself out as being able to perform
professional services beyond the scope of one's competence, as
established by one's education, training, or experience. This
subdivision shall not be construed to expand the scope of the license
authorized by this chapter.
(t) Permitting a trainee or registered intern under one's
supervision or control to perform, or permitting the trainee or
registered intern to hold himself or herself out as competent to
perform, professional services beyond the trainee's or registered
intern's level of education, training, or experience.
(u) The violation of any statute or regulation governing the
gaining and supervision of experience required by this chapter.
(v) Failure to keep records consistent with sound clinical
judgment, the standards of the profession, and the nature of the
services being rendered.
(w) Failure to comply with the child abuse reporting requirements
of Section 11166 of the Penal Code.
(x) Failure to comply with the elder and dependent adult abuse
reporting requirements of Section 15630 of the Welfare and
Institutions Code.
(y) Willful violation of Chapter 1 (commencing with Section
123100) of Part 1 of Division 106 of the Health and Safety Code.
(z) (1) Engaging in an act described in Section 261, 286, 288a, or
289 of the Penal Code with a minor or an act described in Section
288 or 288.5 of the Penal Code regardless of whether the act occurred
prior to or after the time the registration or license was issued by
the board. An act described in this subdivision occurring prior to
the effective date of this subdivision shall constitute
unprofessional conduct and shall subject the licensee to refusal,
suspension, or revocation of a license under this section.
(2) The Legislature hereby finds and declares that protection of
the public, and in particular minors, from sexual misconduct by a
licensee is a compelling governmental interest, and that the ability
to suspend or revoke a license for sexual conduct with a minor
occurring prior to the effective date of this section is equally
important to protecting the public as is the ability to refuse a
license for sexual conduct with a minor occurring prior to the
effective date of this section.
(aa) Engaging in any conduct that subverts or attempts to subvert
any licensing examination or the administration of an examination as
described in Section 123.
SEC. 5. Section 4989.54 of the Business and Professions Code is
amended to read:
4989.54. The board may deny a license or may suspend or revoke
the license of a licensee if he or she has been guilty of
unprofessional conduct. Unprofessional conduct includes, but is not
limited to, the following:
(a) Conviction of a crime substantially related to the
qualifications, functions, and duties of an educational psychologist.
(1) The record of conviction shall be conclusive evidence only of
the fact that the conviction occurred.
(2) The board may inquire into the circumstances surrounding the
commission of the crime in order to fix the degree of discipline or
to determine if the conviction is substantially related to the
qualifications, functions, or duties of a licensee under this
chapter.
(3) A plea or verdict of guilty or a conviction following a plea
of nolo contendere made to a charge substantially related to the
qualifications, functions, or duties of a licensee under this chapter
shall be deemed to be a conviction within the meaning of this
section.
(4) The board may order a license suspended or revoked, or may
decline to issue a 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 Section 1203.4 of
the Penal Code allowing the person to withdraw a plea of guilty and
enter a plea of not guilty or setting aside the verdict of guilty or
dismissing the accusation, information, or indictment.
(b) Securing a license by fraud, deceit, or misrepresentation on
an application for licensure submitted to the board, whether engaged
in by an applicant for a license or by a licensee in support of an
application for licensure.
(c) Administering to himself or herself a controlled substance or
using any of the dangerous drugs specified in Section 4022 or an
alcoholic beverage to the extent, or in a manner, as to be dangerous
or injurious to himself or herself or to any other person or to the
public or to the extent that the use impairs his or her ability to
safely perform the functions authorized by the license. The board
shall deny an application for a license or revoke the license of any
person, other than one who is licensed as a physician and surgeon,
who uses or offers to use drugs in the course of performing
educational psychology.
(d) Advertising in a manner that is false, fraudulent, misleading,
or deceptive, as defined in Section 651.
(e) Violating, attempting to violate, or conspiring to violate any
of the provisions of this chapter or any regulation adopted by the
board.
(f) Commission of any dishonest, corrupt, or fraudulent act
substantially related to the qualifications, functions, or duties of
a licensee.
(g) Denial of licensure, revocation, suspension, restriction, or
any other disciplinary action imposed by another state or territory
or possession of the United States or by any other governmental
agency, on a license, certificate, or registration to practice
educational psychology or any other healing art. A certified copy of
the disciplinary action, decision, or judgment shall be conclusive
evidence of that action.
(h) Revocation, suspension, or restriction by the board of a
license, certificate, or registration to practice as an educational
psychologist, a clinical social worker, professional clinical
counselor, or marriage and family therapist.
(i) Failure to keep records consistent with sound clinical
judgment, the standards of the profession, and the nature of the
services being rendered.
(j) Gross negligence or incompetence in the practice of
educational psychology.
(k) Misrepresentation as to the type or status of a license held
by the licensee or otherwise misrepresenting or permitting
misrepresentation of his or her education, professional
qualifications, or professional affiliations to any person or entity.
(l) Intentionally or recklessly causing physical or emotional harm
to any client.
(m) Engaging in sexual relations with a client or a former client
within two years following termination of professional services,
soliciting sexual relations with a client, or committing an act of
sexual abuse or sexual misconduct with a client or committing an act
punishable as a sexually related crime, if that act or solicitation
is substantially related to the qualifications, functions, or duties
of a licensed educational psychologist.
(n) Prior to the commencement of treatment, failing to disclose to
the client or prospective client the fee to be charged for the
professional services or the basis upon which that fee will be
computed.
(o) Paying, accepting, or soliciting any consideration,
compensation, or remuneration, whether monetary or otherwise, for the
referral of professional clients.
(p) Failing to maintain confidentiality, except as otherwise
required or permitted by law, of all information that has been
received from a client in confidence during the course of treatment
and all information about the client that is obtained from tests or
other means.
(q) Performing, holding himself or herself out as being able to
perform, or offering to perform any professional services beyond the
scope of the license authorized by this chapter or beyond his or her
field or fields of competence as established by his or her education,
training, or experience.
(r) Reproducing or describing in public, or in any publication
subject to general public distribution, any psychological test or
other assessment device the value of which depends in whole or in
part on the naivete of the subject in ways that might invalidate the
test or device. An educational psychologist shall limit access to the
test or device to persons with professional interests who can be
expected to safeguard its use.
(s) Aiding or abetting an unlicensed person to engage in conduct
requiring a license under this chapter.
(t) When employed by another person or agency, encouraging, either
orally or in writing, the employer's or agency's clientele to
utilize his or her private practice for further counseling without
the approval of the employing agency or administration.
(u) Failing to comply with the child abuse reporting requirements
of Section 11166 of the Penal Code.
(v) Failing to comply with the elder and adult dependent abuse
reporting requirements of Section 15630 of the Welfare and
Institutions Code.
(w) Willful violation of Chapter 1 (commencing with Section
123100) of Part 1 of Division 106 of the Health and Safety Code.
(x) (1) Engaging in an act described in Section 261, 286, 288a, or
289 of the Penal Code with a minor or an act described in Section
288 or 288.5 of the Penal Code regardless of whether the act occurred
prior to or after the time the registration or license was issued by
the board. An act described in this subdivision occurring prior to
the effective date of this subdivision shall constitute
unprofessional conduct and shall subject the licensee to refusal,
suspension, or revocation of a license under this section.
(2) The Legislature hereby finds and declares that protection of
the public, and in particular minors, from sexual misconduct by a
licensee is a compelling governmental interest, and that the ability
to suspend or revoke a license for sexual conduct with a minor
occurring prior to the effective date of this section is equally
important to protecting the public as is the ability to refuse a
license for sexual conduct with a minor occurring prior to the
effective date of this section.
(y) Engaging in any conduct that subverts or attempts to subvert
any licensing examination or the administration of the examination as
described in Section 123.
(z) Impersonation of another by any licensee or applicant for a
license, or, in the case of a licensee, allowing any other person to
use his or her license.
(aa) Permitting a person under his or her supervision or control
to perform, or permitting that person to hold himself or herself out
as competent to perform, professional services beyond the level of
education, training, or experience of that person.
SEC. 6. Section 4992.3 of the Business and Professions Code is
amended to read:
4992.3. The board may deny a license or a registration, or may
suspend or revoke the license or registration of a licensee or
registrant if he or she has been guilty of unprofessional conduct.
Unprofessional conduct includes, but is not limited to, the
following:
(a) The conviction of a crime substantially related to the
qualifications, functions, or duties of a licensee or registrant
under this chapter. The record of conviction shall be conclusive
evidence only of the fact that the conviction occurred. The board may
inquire into the circumstances surrounding the commission of the
crime in order to fix the degree of discipline or to determine if the
conviction is substantially related to the qualifications,
functions, or duties of a licensee or registrant under this chapter.
A plea or verdict of guilty or a conviction following a plea of nolo
contendere made to a charge substantially related to the
qualifications, functions, or duties of a licensee or registrant
under this chapter is a conviction within the meaning of this
section. The board may order any license or registration suspended or
revoked, or may decline to issue a license or registration 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 Section 1203.4 of the Penal Code allowing the person to
withdraw a plea of guilty and enter a plea of not guilty, or setting
aside the verdict of guilty, or dismissing the accusation,
information, or indictment.
(b) Securing a license or registration by fraud, deceit, or
misrepresentation on any application for licensure or registration
submitted to the board, whether engaged in by an applicant for a
license or registration, or by a licensee in support of any
application for licensure or registration.
(c) Administering to himself or herself any controlled substance
or using any of the dangerous drugs specified in Section 4022 or any
alcoholic beverage to the extent, or in a manner, as to be dangerous
or injurious to the person applying for a registration or license or
holding a registration or license under this chapter, or to any other
person, or to the public, or, to the extent that the use impairs the
ability of the person applying for or holding a registration or
license to conduct with safety to the public the practice authorized
by the registration or license. The board shall deny an application
for a registration or license or revoke the license or registration
of any person who uses or offers to use drugs in the course of
performing clinical social work. This provision does not apply to any
person also licensed as a physician and surgeon under Chapter 5
(commencing with Section 2000) or the Osteopathic Act who lawfully
prescribes drugs to a patient under his or her care.
(d) Incompetence in the performance of clinical social work.
(e) An act or omission that falls sufficiently below the standard
of conduct of the profession as to constitute an act of gross
negligence.
(f) Violating, attempting to violate, or conspiring to violate
this chapter or any regulation adopted by the board.
(g) Misrepresentation as to the type or status of a license or
registration held by the person, or otherwise misrepresenting or
permitting misrepresentation of his or her education, professional
qualifications, or professional affiliations to any person or entity.
For purposes of this subdivision, this misrepresentation includes,
but is not limited to, misrepresentation of the person's
qualifications as an adoption service provider pursuant to Section
8502 of the Family Code.
(h) Impersonation of another by any licensee, registrant, or
applicant for a license or registration, or, in the case of a
licensee, allowing any other person to use his or her license or
registration.
(i) Aiding or abetting any unlicensed or
unregistered person to engage in conduct for which a license or
registration is required under this chapter.
(j) Intentionally or recklessly causing physical or emotional harm
to any client.
(k) The commission of any dishonest, corrupt, or fraudulent act
substantially related to the qualifications, functions, or duties of
a licensee or registrant.
(l) Engaging in sexual relations with a client or with a former
client within two years from the termination date of therapy with the
client, soliciting sexual relations with a client, or committing an
act of sexual abuse, or sexual misconduct with a client, or
committing an act punishable as a sexually related crime, if that act
or solicitation is substantially related to the qualifications,
functions, or duties of a clinical social worker.
(m) Performing, or holding one's self out as being able to
perform, or offering to perform or permitting, any registered
associate clinical social worker or intern under supervision to
perform any professional services beyond the scope of one's
competence, as established by one's education, training, or
experience. This subdivision shall not be construed to expand the
scope of the license authorized by this chapter.
(n) Failure to maintain confidentiality, except as otherwise
required or permitted by law, of all information that has been
received from a client in confidence during the course of treatment
and all information about the client that is obtained from tests or
other means.
(o) Prior to the commencement of treatment, failing to disclose to
the client or prospective client the fee to be charged for the
professional services, or the basis upon which that fee will be
computed.
(p) Paying, accepting, or soliciting any consideration,
compensation, or remuneration, whether monetary or otherwise, for the
referral of professional clients. All consideration, compensation,
or remuneration shall be in relation to professional counseling
services actually provided by the licensee. Nothing in this
subdivision shall prevent collaboration among two or more licensees
in a case or cases. However, no fee shall be charged for that
collaboration, except when disclosure of the fee has been made in
compliance with subdivision (o).
(q) Advertising in a manner that is false, fraudulent, misleading,
or deceptive, as defined in Section 651.
(r) Reproduction or description in public, or in any publication
subject to general public distribution, of any psychological test or
other assessment device, the value of which depends in whole or in
part on the naivete of the subject, in ways that might invalidate the
test or device. A licensee shall limit access to that test or device
to persons with professional interest who are expected to safeguard
its use.
(s) Any conduct in the supervision of any registered associate
clinical social worker, intern, or trainee by any licensee that
violates this chapter or any rules or regulations adopted by the
board.
(t) Failure to keep records consistent with sound clinical
judgment, the standards of the profession, and the nature of the
services being rendered.
(u) Failure to comply with the child abuse reporting requirements
of Section 11166 of the Penal Code.
(v) Failure to comply with the elder and dependent adult abuse
reporting requirements of Section 15630 of the Welfare and
Institutions Code.
(w) Willful violation of Chapter 1 (commencing with Section
123100) of Part 1 of Division 106 of the Health and Safety Code.
(x) (1) Engaging in an act described in Section 261, 286, 288a, or
289 of the Penal Code with a minor or an act described in Section
288 or 288.5 of the Penal Code regardless of whether the act occurred
prior to or after the time the registration or license was issued by
the board. An act described in this subdivision occurring prior to
the effective date of this subdivision shall constitute
unprofessional conduct and shall subject the licensee to refusal,
suspension, or revocation of a license under this section.
(2) The Legislature hereby finds and declares that protection of
the public, and in particular minors, from sexual misconduct by a
licensee is a compelling governmental interest, and that the ability
to suspend or revoke a license for sexual conduct with a minor
occurring prior to the effective date of this section is equally
important to protecting the public as is the ability to refuse a
license for sexual conduct with a minor occurring prior to the
effective date of this section.
(y) Engaging in any conduct that subverts or attempts to subvert
any licensing examination or the administration of the examination as
described in Section 123.
SEC. 7. Section 4996 of the Business and Professions Code is
amended to read:
4996. (a) Only individuals who have received a license under this
article may style themselves as "Licensed Clinical Social Workers."
Every individual who styles himself or herself or who holds himself
or herself out to be a licensed clinical social worker, or who uses
any words or symbols indicating or tending to indicate that he or she
is a licensed clinical social worker, without holding his or her
license in good standing under this article, is guilty of a
misdemeanor.
(b) It is unlawful for any person to engage in the practice of
clinical social work unless at the time of so doing that person holds
a valid, unexpired, and unrevoked license under this article.
(c) A clinical social worker licensed under this chapter is a
licentiate for purposes of paragraph (2) of subdivision (a) of
Section 805, and thus is a health care practitioner subject to the
provisions of Section 2290.5.
SEC. 8. Section 4999.90 of the Business and Professions Code is
amended to read:
4999.90. The board may refuse to issue any registration or
license, or may suspend or revoke the registration or license of any
intern or licensed professional clinical counselor, if the applicant,
licensee, or registrant has been guilty of unprofessional conduct.
Unprofessional conduct includes, but is not limited to, the
following:
(a) The conviction of a crime substantially related to the
qualifications, functions, or duties of a licensee or registrant
under this chapter. The record of conviction shall be conclusive
evidence only of the fact that the conviction occurred. The board may
inquire into the circumstances surrounding the commission of the
crime in order to fix the degree of discipline or to determine if the
conviction is substantially related to the qualifications,
functions, or duties of a licensee or registrant under this chapter.
A plea or verdict of guilty or a conviction following a plea of nolo
contendere made to a charge substantially related to the
qualifications, functions, or duties of a licensee or registrant
under this chapter shall be deemed to be a conviction within the
meaning of this section. The board may order any license or
registration suspended or revoked, or may decline to issue a license
or registration 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 Section 1203.4 of the Penal
Code allowing the person to withdraw a plea of guilty and enter a
plea of not guilty, or setting aside the verdict of guilty, or
dismissing the accusation, information, or indictment.
(b) Securing a license or registration by fraud, deceit, or
misrepresentation on any application for licensure or registration
submitted to the board, whether engaged in by an applicant for a
license or registration, or by a licensee in support of any
application for licensure or registration.
(c) Administering to himself or herself any controlled substance
or using any of the dangerous drugs specified in Section 4022, or any
alcoholic beverage to the extent, or in a manner, as to be dangerous
or injurious to the person applying for a registration or license or
holding a registration or license under this chapter, or to any
other person, or to the public, or, to the extent that the use
impairs the ability of the person applying for or holding a
registration or license to conduct with safety to the public the
practice authorized by the registration or license. The board shall
deny an application for a registration or license or revoke the
license or registration of any person, other than one who is licensed
as a physician and surgeon, who uses or offers to use drugs in the
course of performing licensed professional clinical counseling
services.
(d) Gross negligence or incompetence in the performance of
licensed professional clinical counseling services.
(e) Violating, attempting to violate, or conspiring to violate any
of the provisions of this chapter or any regulation adopted by the
board.
(f) Misrepresentation as to the type or status of a license or
registration held by the person, or otherwise misrepresenting or
permitting misrepresentation of his or her education, professional
qualifications, or professional affiliations to any person or entity.
(g) Impersonation of another by any licensee, registrant, or
applicant for a license or registration, or, in the case of a
licensee or registrant, allowing any other person to use his or her
license or registration.
(h) Aiding or abetting, or employing, directly or indirectly, any
unlicensed or unregistered person to engage in conduct for which a
license or registration is required under this chapter.
(i) Intentionally or recklessly causing physical or emotional harm
to any client.
(j) The commission of any dishonest, corrupt, or fraudulent act
substantially related to the qualifications, functions, or duties of
a licensee or registrant.
(k) Engaging in sexual relations with a client, or a former client
within two years following termination of therapy, soliciting sexual
relations with a client, or committing an act of sexual abuse, or
sexual misconduct with a client, or committing an act punishable as a
sexually related crime, if that act or solicitation is substantially
related to the qualifications, functions, or duties of a licensed
professional clinical counselor.
(l) Performing, or holding oneself out as being able to perform,
or offering to perform, or permitting any trainee, applicant, or
registrant under supervision to perform, any professional services
beyond the scope of the license authorized by this chapter.
(m) Failure to maintain confidentiality, except as otherwise
required or permitted by law, of all information that has been
received from a client in confidence during the course of treatment
and all information about the client which is obtained from tests or
other means.
(n) Prior to the commencement of treatment, failing to disclose to
the client or prospective client the fee to be charged for the
professional services, or the basis upon which that fee will be
computed.
(o) Paying, accepting, or soliciting any consideration,
compensation, or remuneration, whether monetary or otherwise, for the
referral of professional clients. All consideration, compensation,
or remuneration shall be in relation to professional clinical
counseling services actually provided by the licensee. Nothing in
this subdivision shall prevent collaboration among two or more
licensees in a case or cases. However, no fee shall be charged for
that collaboration, except when disclosure of the fee has been made
in compliance with subdivision (n).
(p) Advertising in a manner that is false, fraudulent, misleading,
or deceptive, as defined in Section 651.
(q) Reproduction or description in public, or in any publication
subject to general public distribution, of any psychological test or
other assessment device, the value of which depends in whole or in
part on the naivete of the subject, in ways that might invalidate the
test or device.
(r) Any conduct in the supervision of a registered intern,
associate clinical social worker, or clinical counselor trainee by
any licensee that violates this chapter or any rules or regulations
adopted by the board.
(s) Performing or holding oneself out as being able to perform
professional services beyond the scope of one's competence, as
established by one's education, training, or experience. This
subdivision shall not be construed to expand the scope of the license
authorized by this chapter.
(t) Permitting a clinical counselor trainee or intern under one's
supervision or control to perform, or permitting the clinical
counselor trainee or intern to hold himself or herself out as
competent to perform, professional services beyond the clinical
counselor trainee's or intern's level of education, training, or
experience.
(u) The violation of any statute or regulation of the standards of
the profession, and the nature of the services being rendered,
governing the gaining and supervision of experience required by this
chapter.
(v) Failure to keep records consistent with sound clinical
judgment, the standards of the profession, and the nature of the
services being rendered.
(w) Failure to comply with the child abuse reporting requirements
of Section 11166 of the Penal Code.
(x) Failing to comply with the elder and dependent adult abuse
reporting requirements of Section 15630 of the Welfare and
Institutions Code.
(y) Repeated acts of negligence.
(z) (1) Engaging in an act described in Section 261, 286, 288a, or
289 of the Penal Code with a minor or an act described in Section
288 or 288.5 of the Penal Code regardless of whether the act occurred
prior to or after the time the registration or license was issued by
the board. An act described in this subdivision occurring prior to
the effective date of this subdivision shall constitute
unprofessional conduct and shall subject the licensee to refusal,
suspension, or revocation of a license under this section.
(2) The Legislature hereby finds and declares that protection of
the public, and in particular minors, from sexual misconduct by a
licensee is a compelling governmental interest, and that the ability
to suspend or revoke a license for sexual conduct with a minor
occurring prior to the effective date of this section is equally
important to protecting the public as is the ability to refuse a
license for sexual conduct with a minor occurring prior to the
effective date of this section.
(aa) Engaging in any conduct that subverts or attempts to subvert
any licensing examination or the administration of an examination as
described in Section 123.
(ab) Revocation, suspension, or restriction by the board of a
license, certificate, or registration to practice as a professional
clinical counselor, clinical social worker, educational psychologist,
or marriage and family therapist.
(ac) Willful violation of Chapter 1 (commencing with Section
123100) of Part 1 of Division 106 of the Health and Safety Code.
SEC. 9. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to protect the health and safety of the public due to a
lack of access to health care providers in rural and urban medically
underserved areas of California, the increasing strain on existing
providers expected to occur with the implementation of the federal
Patient Protection and Affordable Care Act, and the assistance that
further implementation of telehealth can provide to help relieve
these burdens, it is necessary for this act to take effect
immediately.
