SECTIONS 4990.28-4990.42 - California Statutes

BUSINESS AND PROFESSIONS CODE

SECTION 4990.28-4990.42

4990.28. The board may refuse to issue a registration or license
under the chapters it administers and enforces whenever it appears
that the applicant may be unable to practice his or her profession
safely due to mental illness or chemical dependency. The procedures
set forth in Article 12.5 (commencing with Section 820) of Chapter 1
shall apply to denial of a license or registration pursuant to this
section.

4990.30. (a) A licensed marriage and family therapist, marriage and
family therapist intern, licensed clinical social worker, associate
clinical social worker, licensed professional clinical counselor,
professional clinical counselor intern, or licensed educational
psychologist whose license or registration has been revoked,
suspended, or placed on probation, may petition the board for
reinstatement or modification of the penalty, including modification
or termination of probation. The petition shall be on a form provided
by the board and shall state any facts and information as may be
required by the board including, but not limited to, proof of
compliance with the terms and conditions of the underlying
disciplinary order. The petition shall be verified by the petitioner
who shall file an original and sufficient copies of the petition,
together with any supporting documents, for the members of the board,
the administrative law judge, and the Attorney General.
(b) The licensee or registrant may file the petition on or after
the expiration of the following timeframes, each of which commences
on the effective date of the decision ordering the disciplinary
action or, if the order of the board, or any portion of it, is stayed
by the board itself or by the superior court, from the date the
disciplinary action is actually implemented in its entirety:
(1) Three years for reinstatement of a license or registration
that was revoked for unprofessional conduct, except that the board
may, in its sole discretion, specify in its revocation order that a
petition for reinstatement may be filed after two years.
(2) Two years for early termination of any probation period of
three years or more.
(3) One year for modification of a condition, reinstatement of a
license or registration revoked for mental or physical illness, or
termination of probation of less than three years.
(c) The petition may be heard by the board itself or the board may
assign the petition to an administrative law judge pursuant to
Section 11512 of the Government Code.
(d) The petitioner may request that the board schedule the hearing
on the petition for a board meeting at a specific city where the
board regularly meets.
(e) 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 or the administrative law judge.
(f) The petitioner shall at all times have the burden of
production and proof to establish by clear and convincing evidence
that he or she is entitled to the relief sought in the petition.
(g) The board, when it is hearing the petition itself, or an
administrative law judge sitting for the board, 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 his or her license or registration was
in good standing, and the petitioner's rehabilitative efforts,
general reputation for truth, and professional ability.
(h) The hearing may be continued from time to time as the board or
the administrative law judge deems appropriate but in no case may
the hearing on the petition be delayed more than 180 days from its
filing without the consent of the petitioner.
(i) 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.
In a decision granting a petition reinstating a license or modifying
a penalty, the board itself, or the administrative law judge, may
impose any terms and conditions that the agency deems reasonably
appropriate, including those set forth in Sections 823 and 4990.40.
If a petition is heard by an administrative law judge sitting alone,
the administrative law judge shall prepare a proposed decision and
submit it to the board. The board may take action with respect to the
proposed decision and petition as it deems appropriate.
(j) The petitioner shall pay a fingerprinting fee and provide a
current set of his or her fingerprints to the board. The petitioner
shall execute a form authorizing release to the board or its
designee, of all information concerning the petitioner's current
physical and mental condition. Information provided to the board
pursuant to the release shall be confidential and shall not be
subject to discovery or subpoena in any other proceeding, and shall
not be admissible in any action, other than before the board, to
determine the petitioner's fitness to practice as required by Section
822.
(k) The board may delegate to its executive officer authority to
order investigation of the contents of the petition.
(l) 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 the
petitioner is required to register 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.
(m) Except in those cases where the petitioner has been
disciplined for 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.

4990.32. (a) Except as otherwise provided in this section, an
accusation filed pursuant to Section 11503 of the Government Code
against a licensee or registrant under the chapters the board
administers and enforces shall be filed within three years from the
date the board discovers the alleged act or omission that is the
basis for disciplinary action or within seven years from the date the
alleged act or omission that is the basis for disciplinary action
occurred, whichever occurs first.
(b) An accusation filed against a licensee alleging the
procurement of a license by fraud or misrepresentation is not subject
to the limitations set forth in subdivision (a).
(c) The limitations period provided by subdivision (a) shall be
tolled for the length of time required to obtain compliance when a
report required to be filed by the licensee or registrant with the
board pursuant to Article 11 (commencing with Section 800) of Chapter
1 is not filed in a timely fashion.
(d) An accusation alleging sexual misconduct shall be filed within
three years after the board discovers the act or omission alleged as
the grounds for disciplinary action or within 10 years after the act
or omission alleged as the grounds for disciplinary action occurred,
whichever occurs first. This subdivision shall apply to a complaint
alleging sexual misconduct received by the board on and after January
1, 2002.
(e) If an alleged act or omission involves a minor, the seven-year
limitations period provided for by subdivision (a) and the 10-year
limitations period provided for by subdivision (d) shall be tolled
until the minor reaches the age of majority. However, if the board
discovers an alleged act of sexual contact with a minor under Section
261, 286, 288, 288.5, 288a, or 289 of the Penal Code after the
limitations periods described in this subdivision have otherwise
expired, and there is independent evidence that corroborates the
allegation, an accusation shall be filed within three years from the
date the board discovers that alleged act.
(f) The limitations period provided by subdivision (a) shall be
tolled during any period if material evidence necessary for
prosecuting or determining whether a disciplinary action would be
appropriate is unavailable to the board due to an ongoing criminal
investigation.
(g) For purposes of this section, "discovers" means the latest of
the occurrence of any of the following with respect to each act or
omission alleged as the basis for disciplinary action:
(1) The date the board received a complaint or report describing
the act or omission.
(2) The date, subsequent to the original complaint or report, on
which the board became aware of any additional acts or omissions
alleged as the basis for disciplinary action against the same
individual.
(3) The date the board receives from the complainant a written
release of information pertaining to the complainant's diagnosis and
treatment.

4990.34. (a) The board may place a license or registration issued
under the chapters it administers and enforces on probation under the
following circumstances:
(1) In lieu of, or in addition to, any order of the board
suspending or revoking the license or registration.
(2) Upon the issuance of a license or registration to an
individual who has been guilty of unprofessional conduct but who
otherwise completed all education, training, and experience required
for licensure or registration.
(3) As a condition upon the reissuance or reinstatement of a
license or registration that has been suspended or revoked by the
board.
(b) The board may adopt regulations establishing a monitoring
program to ensure compliance with any terms or conditions of
probation imposed by the board pursuant to subdivision (a). The cost
of probation or monitoring may be ordered to be paid by the licensee
or registrant.

4990.36. The board, in its discretion, may require a licensee or
registrant whose license or registration has been placed on probation
or whose license or registration has been suspended, to obtain
additional professional training and to pass an examination upon
completion of that training and to pay any necessary examination fee.
The examination may be written, oral, or a practical or clinical
examination.

4990.38. The board may deny an application or may suspend or revoke
a license or registration issued under the chapters it administers
and enforces for any disciplinary action imposed by another state or
territory or possession of the United States, or by a governmental
agency on a license, certificate or registration to practice marriage
and family therapy, clinical social work, educational psychology,
professional clinical counseling, or any other healing art. The
disciplinary action, which may include denial of licensure or
revocation or suspension of the license or imposition of restrictions
on it, constitutes unprofessional conduct. A certified copy of the
disciplinary action decision or judgment shall be conclusive evidence
of that action.

4990.40. The board shall revoke a license or registration issued
under the chapters it administers and enforces upon a decision made
in accordance with the procedures set forth in Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2 of the
Government Code, that contains a finding of fact that the licensee or
registrant engaged in an act of sexual contact, as defined in
Section 729, when that act is with a patient or with a former patient
when the relationship was terminated primarily for the purpose of
engaging in that act. The revocation shall not be stayed by the
administrative law judge or the board.

4990.42. The proceedings under this article 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.