SECTIONS 725-733 - California Statutes

BUSINESS AND PROFESSIONS CODE

SECTION 725-733

725. (a) Repeated acts of clearly excessive prescribing,
furnishing, dispensing, or administering of drugs or treatment,
repeated acts of clearly excessive use of diagnostic procedures, or
repeated acts of clearly excessive use of diagnostic or treatment
facilities as determined by the standard of the community of
licensees is unprofessional conduct for a physician and surgeon,
dentist, podiatrist, psychologist, physical therapist, chiropractor,
optometrist, speech-language pathologist, or audiologist.
(b) Any person who engages in repeated acts of clearly excessive
prescribing or administering of drugs or treatment is guilty of a
misdemeanor and shall be punished by a fine of not less than one
hundred dollars ($100) nor more than six hundred dollars ($600), or
by imprisonment for a term of not less than 60 days nor more than 180
days, or by both that fine and imprisonment.
(c) A practitioner who has a medical basis for prescribing,
furnishing, dispensing, or administering dangerous drugs or
prescription controlled substances shall not be subject to
disciplinary action or prosecution under this section.
(d) No physician and surgeon shall be subject to disciplinary
action pursuant to this section for treating intractable pain in
compliance with Section 2241.5.

726. The commission of any act of sexual abuse, misconduct, or
relations with a patient, client, or customer constitutes
unprofessional conduct and grounds for disciplinary action for any
person licensed under this division, under any initiative act
referred to in this division and under Chapter 17 (commencing with
Section 9000) of Division 3.
This section shall not apply to sexual contact between a physician
and surgeon and his or her spouse or person in an equivalent
domestic relationship when that physician and surgeon provides
medical treatment, other than psychotherapeutic treatment, to his or
her spouse or person in an equivalent domestic relationship.

727. The provisions of subdivision (2) of Section 1103 of the
Evidence Code shall apply in disciplinary proceedings brought against
a licensee for acts in violation of Section 726.

728. (a) Any psychotherapist or employer of a psychotherapist who
becomes aware through a patient that the patient had alleged sexual
intercourse or alleged sexual contact with a previous psychotherapist
during the course of a prior treatment shall provide to the patient
a brochure promulgated by the department that delineates the rights
of, and remedies for, patients who have been involved sexually with
their psychotherapists. Further, the psychotherapist or employer
shall discuss with the patient the brochure prepared by the
department.
(b) Failure to comply with this section constitutes unprofessional
conduct.
(c) For the purpose of this section, the following definitions
apply:
(1) "Psychotherapist" means a physician and surgeon specializing
in the practice of psychiatry or practicing psychotherapy, a
psychologist, a clinical social worker, a marriage and family
therapist, a licensed professional clinical counselor, a
psychological assistant, a marriage and family therapist registered
intern or trainee, an intern or clinical counselor trainee, as
specified in Chapter 16 (commencing with Section 4999.10), or an
associate clinical social worker.
(2) "Sexual contact" means the touching of an intimate part of
another person.
(3) "Intimate part" and "touching" have the same meaning as
defined in subdivisions (g) and (e), respectively, of Section 243.4
of the Penal Code.
(4) "The course of a prior treatment" means the period of time
during which a patient first commences treatment for services that a
psychotherapist is authorized to provide under his or her scope of
practice, or that the psychotherapist represents to the patient as
being within his or her scope of practice, until the
psychotherapist-patient relationship is terminated.

729. (a) Any physician and surgeon, psychotherapist, alcohol and
drug abuse counselor or any person holding himself or herself out to
be a physician and surgeon, psychotherapist, or alcohol and drug
abuse counselor, who engages in an act of sexual intercourse, sodomy,
oral copulation, or sexual contact with a patient or client, or with
a former patient or client when the relationship was terminated
primarily for the purpose of engaging in those acts, unless the
physician and surgeon, psychotherapist, or alcohol and drug abuse
counselor has referred the patient or client to an independent and
objective physician and surgeon, psychotherapist, or alcohol and drug
abuse counselor recommended by a third-party physician and surgeon,
psychotherapist, or alcohol and drug abuse counselor for treatment,
is guilty of sexual exploitation by a physician and surgeon,
psychotherapist, or alcohol and drug abuse counselor.
(b) Sexual exploitation by a physician and surgeon,
psychotherapist, or alcohol and drug abuse counselor is a public
offense:
(1) An act in violation of subdivision (a) shall be punishable by
imprisonment in a county jail for a period of not more than six
months, or a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine.
(2) Multiple acts in violation of subdivision (a) with a single
victim, when the offender has no prior conviction for sexual
exploitation, shall be punishable by imprisonment in a county jail
for a period of not more than six months, or a fine not exceeding one
thousand dollars ($1,000), or by both that imprisonment and fine.
(3) An act or acts in violation of subdivision (a) with two or
more victims shall be punishable by imprisonment in the state prison
for a period of 16 months, two years, or three years, and a fine not
exceeding ten thousand dollars ($10,000); or the act or acts shall be
punishable by imprisonment in a county jail for a period of not more
than one year, or a fine not exceeding one thousand dollars
($1,000), or by both that imprisonment and fine.
(4) Two or more acts in violation of subdivision (a) with a single
victim, when the offender has at least one prior conviction for
sexual exploitation, shall be punishable by imprisonment in the state
prison for a period of 16 months, two years, or three years, and a
fine not exceeding ten thousand dollars ($10,000); or the act or acts
shall be punishable by imprisonment in a county jail for a period of
not more than one year, or a fine not exceeding one thousand dollars
($1,000), or by both that imprisonment and fine.
(5) An act or acts in violation of subdivision (a) with two or
more victims, and the offender has at least one prior conviction for
sexual exploitation, shall be punishable by imprisonment in the state
prison for a period of 16 months, two years, or three years, and a
fine not exceeding ten thousand dollars ($10,000).
For purposes of subdivision (a), in no instance shall consent of
the patient or client be a defense. However, physicians and surgeons
shall not be guilty of sexual exploitation for touching any intimate
part of a patient or client unless the touching is outside the scope
of medical examination and treatment, or the touching is done for
sexual gratification.
(c) For purposes of this section:
(1) "Psychotherapist" has the same meaning as defined in Section
728.
(2) "Alcohol and drug abuse counselor" means an individual who
holds himself or herself out to be an alcohol or drug abuse
professional or paraprofessional.
(3) "Sexual contact" means sexual intercourse or the touching of
an intimate part of a patient for the purpose of sexual arousal,
gratification, or abuse.
(4) "Intimate part" and "touching" have the same meanings as
defined in Section 243.4 of the Penal Code.
(d) In the investigation and prosecution of a violation of this
section, no person shall seek to obtain disclosure of any
confidential files of other patients, clients, or former patients or
clients of the physician and surgeon, psychotherapist, or alcohol and
drug abuse counselor.
(e) This section does not apply to sexual contact between a
physician and surgeon and his or her spouse or person in an
equivalent domestic relationship when that physician and surgeon
provides medical treatment, other than psychotherapeutic treatment,
to his or her spouse or person in an equivalent domestic
relationship.
(f) If a physician and surgeon, psychotherapist, or alcohol and
drug abuse counselor in a professional partnership or similar group
has sexual contact with a patient in violation of this section,
another physician and surgeon, psychotherapist, or alcohol and drug
abuse counselor in the partnership or group shall not be subject to
action under this section solely because of the occurrence of that
sexual contact.

730. Any person licensed under this division or under any
initiative act referred to in this division shall not perform any
medical evaluation for which the evaluator is required to be
certified as a qualified medical evaluator pursuant to Section 139.2
of the Labor Code without having first obtained that certification.
No person shall be in violation of this section if the person is
certified as a qualified medical evaluator at the time of assignment
to a three-member panel under subdivision (h) of Section 139.2 of the
Labor Code or, if the injured worker is represented, if the person
is certified as a qualified medical evaluator at the time the injured
worker is referred for a medical evaluation. A violation of this
section constitutes unprofessional conduct and grounds for
disciplinary action.

730.5. (a) It is unprofessional conduct and a crime, as provided in
Section 4935, for a physician and surgeon, osteopathic physician,
dentist, or podiatrist to direct or supervise the performance of
acupuncture involving the application of a needle to the body of a
human being by a person licensed under this division who is not
licensed pursuant to the Acupuncture Licensure Act established by
Chapter 12 (commencing with Section 4925).
(b) It is unprofessional conduct and a crime, as provided in
Section 4935, for a person licensed under this division who is not
licensed pursuant to the Acupuncture Licensure Act established by
Chapter 12 (commencing with Section 4925) to perform acupuncture
involving the application of a needle to the body of a human being at
the direction or under the supervision of a physician and surgeon,
osteopathic physician, dentist, or podiatrist.

731. (a) Any person licensed, certified, registered, or otherwise
subject to regulation pursuant to this division who engages in, or
who aids or abets in, a violation of Section 266h, 266i, 315, 316, or
318 of, or subdivision (a) or (b) of Section 647 of, the Penal Code
occurring in the work premises of, or work area under the direct
professional supervision or control of, that person, shall be guilty
of unprofessional conduct. The license, certification, or
registration of that person shall be subject to denial, suspension,
or revocation by the appropriate regulatory entity under this
division.
(b) In addition to any penalty provided under any other provision
of law, a violation of subdivision (a) shall subject the person to a
civil penalty in an amount not to exceed two thousand five hundred
dollars ($2,500) for the first offense, and not to exceed five
thousand dollars ($5,000) for each subsequent offense, which may be
assessed and recovered in a civil action brought by any district
attorney. If the action is brought by a district attorney, the
penalty recovered shall be paid to the treasurer of the county in
which the judgment was entered.

732. (a) A physician and surgeon and a dentist shall refund any
amount that a patient has paid for services rendered that has
subsequently been paid to the physician and surgeon or dentist by a
third-party payor and that constitutes a duplicate payment. The
refund shall be made as follows:
(1) If the patient requests a refund, within 30 days following the
request from that patient for a refund if the duplicate payment has
been received, or within 30 days of receipt of the duplicate payment
if the duplicate payment has not been received.
(2) If the patient does not request a refund, within 90 days of
the date the physician and surgeon or dentist knows, or should have
known, of the receipt of the duplicate payment, the physician and
surgeon or dentist shall notify the patient of the duplicate payment,
and the duplicate payment shall be refunded within 30 days unless
the patient requests that a credit balance be retained.
(b) Violation of this section shall constitute unprofessional
conduct. Disciplinary proceedings shall be conducted in accordance
with the Medical Practice Act (Chapter 5 (commencing with Section
2000)) or the Dental Practice Act (Chapter 4 (commencing with Section
1600)), as applicable.

733. (a) No licentiate shall obstruct a patient in obtaining a
prescription drug or device that has been legally prescribed or
ordered for that patient. A violation of this section constitutes
unprofessional conduct by the licentiate and shall subject the
licentiate to disciplinary or administrative action by his or her
licensing agency.
(b) Notwithstanding any other provision of law, a licentiate shall
dispense drugs and devices, as described in subdivision (a) of
Section 4024, pursuant to a lawful order or prescription unless one
of the following circumstances exists:
(1) Based solely on the licentiate's professional training and
judgment, dispensing pursuant to the order or the prescription is
contrary to law, or the licentiate determines that the prescribed
drug or device would cause a harmful drug interaction or would
otherwise adversely affect the patient's medical condition.
(2) The prescription drug or device is not in stock. If an order,
other than an order described in Section 4019, or prescription cannot
be dispensed because the drug or device is not in stock, the
licentiate shall take one of the following actions:
(A) Immediately notify the patient and arrange for the drug or
device to be delivered to the site or directly to the patient in a
timely manner.
(B) Promptly transfer the prescription to another pharmacy known
to stock the prescription drug or device that is near enough to the
site from which the prescription or order is transferred, to ensure
the patient has timely access to the drug or device.
(C) Return the prescription to the patient and refer the patient.
The licentiate shall make a reasonable effort to refer the patient to
a pharmacy that stocks the prescription drug or device that is near
enough to the referring site to ensure that the patient has timely
access to the drug or device.
(3) The licentiate refuses on ethical, moral, or religious grounds
to dispense a drug or device pursuant to an order or prescription. A
licentiate may decline to dispense a prescription drug or device on
this basis only if the licentiate has previously notified his or her
employer, in writing, of the drug or class of drugs to which he or
she objects, and the licentiate's employer can, without creating
undue hardship, provide a reasonable accommodation of the licentiate'
s objection. The licentiate's employer shall establish protocols that
ensure that the patient has timely access to the prescribed drug or
device despite the licentiate's refusal to dispense the prescription
or order. For purposes of this section, "reasonable accommodation"
and "undue hardship" shall have the same meaning as applied to those
terms pursuant to subdivision (l) of Section 12940 of the Government
Code.
(c) For the purposes of this section, "prescription drug or device"
has the same meaning as the definition in Section 4022.
(d) The provisions of this section shall apply to the drug therapy
described in Section 4052.3.
(e) This section imposes no duty on a licentiate to dispense a
drug or device pursuant to a prescription or order without payment
for the drug or device, including payment directly by the patient or
through a third-party payer accepted by the licentiate or payment of
any required copayment by the patient.
(f) The notice to consumers required by Section 4122 shall include
a statement that describes patients' rights relative to the
requirements of this section.