Dental Board of California Planned Implementation of AB 2138 Modified, Comment Period Extended

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By Jonathan Greenbergs

On May 18, 2020, the Dental Board of California (DBC) published modified text for regulations to implement AB 2138 (Chiu) (Chapter 995, Statutes of 2018), and on June 2, 2020, extended the public comment period from June 2 through June 17, 2020. The Board initially noticed its intent to amend sections 1019 and 1020, Title 16 of the California Code of Regulations on February 18, 2020. According to the initial statement of reasons, the proposed amendments are the Board’s efforts to implement AB 2138 regarding denial of applications, and revocation or suspension of licenses due to criminal convictions. [25:2 CRLR 6–7] The stated goal of the legislation is to diminish obstacles to licensing for people with convictions who are rehabilitated, and to limit DBC’s ability to use prior convictions or acts when denying licenses for dentistry specifically.

In addition to numerous revisions to the language meant to increase clarity, the Board added reference to sections 1670.1, 1680(e), and 1681(c) in several places to clarify that a criminal sentence is not completed until parole or probation is completed. The modified language makes clear that this consideration comes into play both at initial licensure and in any professional misconduct determination.

As reported by the Board at its May 14, 2020 meeting, a public comment letter signed by twenty listed organizations, such as UC Irvine School of Law, Legal Aid at Work, and San Jose State University, argued “that the proposed regulations fall short of the intent of [AB 2138], which included combating discrimination against people with records who have demonstrated rehabilitation and seek to establish themselves professionally.” The Board voted to reject these comments and defended the articulated rulemaking, countering that the purpose of AB 2138 was narrower, merely “to clarify substantial relationship criteria and criteria for rehabilitation.” Among other topics, the joint letter commented that “section 1020 relied too heavily on law enforcement’s reports and determination of the applicant’s progress,” and raised the fact that rehabilitation can take many different forms. The organizations offered expanded language of examples of rehabilitation, including: volunteer service; successful employment in a related field; history of work experience in an employment social enterprise; unpaid work in the community; furthered education; abstinence from controlled substances and/or alcohol; stability of family life; fulfillment of parental and familial responsibilities; new and different social and business relationships from those which existed at the time of the underlying charges at issue; and change in attitude of the applicant. Again, the Board voted to reject these comments stating that it “can and already does give serious consideration to these factors when considering whether an applicant is rehabilitated.”

The Office of Administrative Law (OAL) is currently reviewing the proposed regulations.

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