SECTIONS 2875-2879 - California Statutes

BUSINESS AND PROFESSIONS CODE

SECTION 2875-2879

2875. Every licensee may be disciplined as provided in this
article. The proceedings under this article shall be conducted in
accordance with Chapter 5 of Part 1 of Division 3 of Title 2 of the
Government Code, and the board shall have all the powers granted
therein.

2876. The board shall discipline the holder of any license, whose
default has been entered or who has been heard by the board and found
guilty, by any of the following methods:
(a) Suspending judgment.
(b) Placing him upon probation.
(c) Suspending his right to practice vocational nursing for a
period not exceeding one year.
(d) Revoking his license.
(e) Taking such other action in relation to disciplining him as
the board in its discretion may deem proper.

2877. If the holder of a license is suspended, he shall not be
entitled to practice vocational nursing during the term of suspension
and shall return his license to the board.
Upon the expiration of the term of suspension, he shall be
reinstated by the board and shall be entitled to resume his practice
of vocational nursing unless it is established to the satisfaction of
the board that he has practiced vocational nursing in this state
during the term of suspension. In this event, the board shall revoke
his license.

2878. The board may suspend or revoke a license issued under this
chapter for any of the following:
(a) Unprofessional conduct, which includes, but is not limited to,
the following:
(1) Incompetence, or gross negligence in carrying out usual
nursing functions.
(2) A conviction of practicing medicine without a license in
violation of Chapter 5 (commencing with Section 2000), in which event
the record of conviction shall be conclusive evidence of the
conviction.
(3) The use of advertising relating to nursing which violates
Section 17500.
(4) The use of excessive force upon or the mistreatment or abuse
of any patient. For the purposes of this paragraph, "excessive force"
means force clearly in excess of that which would normally be
applied in similar clinical circumstances.
(5) The failure to maintain confidentiality of patient medical
information, except as disclosure is otherwise permitted or required
by law.
(6) Failure to report the commission of any act prohibited by this
section.
(b) Procuring a certificate by fraud, misrepresentation, or
mistake.
(c) Procuring, aiding, abetting, attempting, or agreeing or
offering to procure or assist at, a criminal abortion.
(d) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violating of, or conspiring to violate
any provision or term of this chapter.
(e) Making or giving any false statement or information in
connection with the application for issuance of a license.
(f) Conviction of a crime substantially related to the
qualifications, functions, and duties of a licensed vocational nurse,
in which event the record of the conviction shall be conclusive
evidence of the conviction.
(g) Impersonating any applicant or acting as proxy for an
applicant in any examination required under this chapter for the
issuance of a license.
(h) Impersonating another practitioner, misrepresenting
professional credentials or licensure status, or permitting another
person to use his or her certificate or license.
(i) Aiding or assisting, or agreeing to aid or assist any person
or persons, whether a licensed physician or not, in the performance
of or arranging for a violation of Article 12 (commencing with
Section 2220) of Chapter 5.
(j) The commission of any act involving dishonesty, when that
action is related to the duties and functions of the licensee.
(k) The commission of any act punishable as a sexually related
crime, if that act is substantially related to the duties and
functions of the licensee.
(l) Except for good cause, the knowing failure to protect patients
by failing to follow infection control guidelines of the board,
thereby risking transmission of blood-borne infectious diseases from
licensee to patient, from patient to patient, and from patient to
licensee. In administering this subdivision, the board shall consider
referencing the standards, regulations, and guidelines of the State
Department of Health Services developed pursuant to Section 1250.11
of the Health and Safety Code and the standards, guidelines, and
regulations pursuant to the California Occupational Safety and Health
Act of 1973 (Part 1 (commencing with Section 6300), Division 5,
Labor Code) for preventing the transmission of HIV, hepatitis B, and
other blood-borne pathogens in health care settings. As necessary,
the board shall consult with the California Medical Board, the Board
of Podiatric Medicine, the Board of Dental Examiners, and the Board
of Registered Nursing, to encourage appropriate consistency in the
implementation of this subdivision.
The board shall seek to ensure that licentiates and others
regulated by the board are informed of the responsibility of
licentiates and others to follow infection control guidelines, and of
the most recent scientifically recognized safeguards for minimizing
the risk of transmission of blood-borne infectious diseases.

2878.1. (a) If a licensed vocational nurse has knowledge that
another person has committed any act prohibited by Section 2878, the
licensed vocational nurse shall report this information to the board
in writing and shall cooperate with the board in furnishing
information or assistance as may be required.
(b) Any employer of a licensed vocational nurse shall report to
the board the suspension or termination for cause of any licensed
vocational nurse in its employ. In the case of licensed vocational
nurses employed by the state, the report shall not be made until
after the conclusion of the review process specified in Section 52.3
of the California Code of Regulations and Skelly v. State Personnel
Bd. (1975) 15 Cal.3d 194. 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 of the Business and
Professions Code and shall not be subject to discovery in civil
cases.
(c) For purposes of the section, "suspension or termination for
cause" is defined as 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 vocational nursing.
(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) Falsification of medical records.
(5) Gross negligence or incompetence.
(6) Theft from patients or clients, other employees, or the
employer.
(d) Failure of an employer to make a report required by this
section is punishable by an administrative fine not to exceed ten
thousand dollars ($10,000) per violation.
(e) 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 chapter.
(f) The board shall implement this section contingent upon the
necessary funding in the annual Budget Act.

2878.5. In addition to other acts constituting unprofessional
conduct within the meaning of this chapter, it is unprofessional
conduct for a person licensed under this chapter to do any of the
following:
(a) Obtain or possess in violation of law, or prescribe, or except
as directed by a licensed physician and surgeon, dentist or
podiatrist administer to himself or herself or furnish or administer
to another, any controlled substance as defined in Division 10 of the
Health and Safety Code, or any dangerous drug as defined in Section
4022.
(b) Use any controlled substance as defined in Division 10 of the
Health and Safety Code, or any dangerous drug as defined in Section
4022, or alcoholic beverages, to an extent or in a manner dangerous
or injurious to himself or herself, any other person, or the public,
or to the extent that the use impairs his or her ability to conduct
with safety to the public the practice authorized by his or her
license.
(c) Be convicted of a criminal offense involving possession of any
narcotic or dangerous drug, or the prescription, consumption, or
self-administration of any of the substances described in
subdivisions (a) and (b) of this section, in which event the record
of the conviction is conclusive evidence thereof.
(d) Be committed or confined by a court of competent jurisdiction
for intemperate use of or addiction to the use of any of the
substances described in subdivisions (a) and (b) of this section, in
which event the court order of commitment or confinement is prima
facie evidence of that commitment or confinement.
(e) Falsify, or make grossly incorrect, grossly inconsistent, or
unintelligible entries in any hospital, patient, or other record
pertaining to narcotics or dangerous drugs as specified in
subdivision (b).

2878.6. 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 and duties of a licensed vocational nurse
is deemed to be a conviction within the meaning of this article. The
board may order the 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 the provisions of Section
1203.4 of the Penal Code allowing such person to withdraw his plea of
guilty and to enter a plea of not guilty, or setting aside the
verdict of guilty, or dismissing the accusation, information or
indictment.

2878.7. (a) A person whose license has been revoked, suspended,
surrendered, or placed on probation, may petition the board for
reinstatement or modification of the penalty, including modification
or termination of probation, after a period not less than the
following minimum periods has elapsed from the effective date of the
disciplinary order or if any portion of the order is stayed by the
board itself or by the superior court, from the date the disciplinary
action is actually implemented in its entirety:
(1) Except as otherwise provided in this section, at least three
years for the reinstatement of a license that was revoked or
surrendered, except that the board may, in its sole discretion,
specify in its order a lesser period of time, which shall be no less
than one year, to petition for reinstatement.
(2) At least two years for the early termination of a probation
period of three years or more.
(3) At least one year for the early termination of a probation
period of less than three years.
(4) At least one year for the modification of a condition of
probation, or for the reinstatement of a license revoked for mental
or physical illness.
(b) The board shall give notice to the Attorney General of the
filing of the petition. The petitioner and the Attorney General shall
be given timely notice by letter of the time and place of the
hearing on the petition, and an opportunity to present both oral and
documentary evidence and argument to the board. The petitioner shall
at all times have the burden of proof to establish by clear and
convincing evidence that he or she is entitled to the relief sought
in the petition.
(c) The board itself or the administrative law judge, if one is
designated by the board, shall hear the petition and shall prepare a
written decision setting forth the reasons supporting the decision.
(d) The board may grant or deny the petition or may impose any
terms and conditions that it reasonably deems appropriate as a
condition of reinstatement or reduction of penalty.
(e) 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 or subject to
an order of registration pursuant to Section 290 of the Penal Code.
No petition shall be considered while there is an accusation or
petition to revoke probation pending against the petitioner.
(f) Except in those cases where the petitioner has been
disciplined for a violation of Section 822, the board may in its
discretion deny without hearing or argument any petition that is
filed pursuant to this section within a period of two years from the
effective date of a prior decision following a hearing under this
section.
(g) Nothing in this section shall be deemed to alter the
provisions of Sections 822 and 823.

2878.8. The board may deny any application or may suspend or revoke
any license issued under this chapter based upon the denial of
licensure, suspension, restriction, or other disciplinary action of a
license by another state, any other government agency, or by another
California health care professional licensing board. A certified
copy of the finding shall be conclusive evidence of that action
provided that, if from another state, the findings establish an act
which if committed in California would be grounds for discipline.

2878.9. (a) The board may issue an initial license on probation,
with specific terms and conditions, to any applicant who has violated
any term of this chapter, but who has met all other requirements for
licensure and who has successfully completed the examination for
licensure within four years of the date of issuance of the initial
license.
(b) Specific terms and conditions may include, but are not limited
to, the following:
(1) Continuing medical, psychiatric, or psychological treatment.
(2) Ongoing participation in a specified rehabilitation program.
(3) Abstention from the use of alcohol or drugs.
(4) Compliance with all provisions of this chapter.
(c) (1) Notwithstanding any other provision of law, and for
purposes of this section, when deciding whether to issue a
probationary license, the board shall request that an applicant with
a dismissed conviction provide proof of that dismissal and shall give
special consideration to applicants whose convictions have been
dismissed pursuant to Section 1203.4 or 1203.4a of the Penal Code.
(2) The board shall also take into account and consider any other
reasonable documents or individual character references provided by
the applicant that may serve as evidence of rehabilitation as deemed
appropriate by the board.
(d) The board may modify or terminate the terms and conditions
imposed on the probationary license upon receipt of a petition from
the applicant or licensee.
(e) For purposes of issuing a probationary license to qualified
new applicants, the board shall develop standard terms of probation
that shall include, but not be limited to, the following:
(1) A three-year limit on the individual probationary license.
(2) A process to obtain a standard license for applicants who were
issued a probationary license.
(3) Supervision requirements.
(4) Compliance and quarterly reporting requirements.

2879. (a) Notwithstanding Section 2878 or any other provision of
law, the board may revoke, suspend, or deny at any time a license
under this chapter on any of the grounds for disciplinary action
provided in this chapter. The proceedings under this section shall be
conducted in accordance with Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code, and
the board shall have all the powers granted therein.
(b) The board may deny a license to an applicant on any of the
grounds specified in Section 480.
(c) In addition to the requirements provided in Sections 485 and
486, upon denial of an application for a license, the board shall
provide a statement of reasons for the denial that does the
following:
(1) Evaluates evidence of rehabilitation submitted by the
applicant, if any.
(2) Provides the board's criteria relating to rehabilitation,
formulated pursuant to Section 482, that takes into account the age
and severity of the offense, and the evidence relating to
participation in treatment or other rehabilitation programs.
(3) If the board's decision was based on the applicant's prior
criminal conviction, justifies the board's denial of a license and
conveys the reasons why the prior criminal conviction is
substantially related to the qualifications, functions, or duties of
a licensed vocational nurse.
(d) Commencing July 1, 2009, all of the following shall apply:
(1) If the denial of a license is due at least in part to the
applicant's state or federal criminal history record, the board
shall, in addition to the information provided pursuant to paragraph
(3) of subdivision (c), provide to the applicant a copy of his or her
criminal history record if the applicant makes a written request to
the board for a copy, specifying an address to which it is to be
sent.
(A) The state or federal criminal history record shall not be
modified or altered from its form or content as provided by the
Department of Justice.
(B) The criminal history record shall be provided in such a manner
as to protect the confidentiality and privacy of the applicant's
criminal history record and the criminal history record shall not be
made available by the board to any employer.
(C) The board shall retain a copy of the applicant's written
request and a copy of the response sent to the applicant, which shall
include the date and the address to which the response was sent.
(2) The board shall make this information available upon request
by the Department of Justice or the Federal Bureau of Investigation.
(e) Notwithstanding Section 487, the board shall conduct a hearing
of a license denial within 90 days of receiving an applicant's
request for a hearing. For all other hearing requests, the board
shall determine when the hearing shall be conducted.