By Tala Hughes

AB 1636 (Weber), as introduced January 12, 2022, would amend sections 2221, 2232, and 2307 of the Business and Professions Code, pertaining to the Medical Board of California (“MBC” or “Board”) obligations to deny and revoke licensure to individuals who have been or would have been required to register as a sex offender or formally disciplined for sexual misconduct in any state, as well as prevent applicants from reapplying or petitioning the courts for reinstatement. According to the California Medical Association (“CMA”), the sponsor of the bill, AB 1636 helps ensure that the Board prohibits practitioners who commit sexual offenses from both acquiring and reinstating their license, which has been the focus of an ongoing investigation by the Los Angeles Times. The investigation found that since 2013, MBC had reinstated ten licenses to individuals whose discipline resulted from sexual misconduct.

Currently, section 2221 allows the Board to deny a physician’s and surgeon’s certificate (“P&S certificate”) to an applicant who is actively registered as a sex offender in California, not including those whose registration resulted from a misdemeanor conviction. AB 1636, as it amends the law today, would broaden the language to include denial to an applicant who has been registered as a sex offender in any state. The proposed language also includes P&S denial if the applicant was convicted of any offense that, if committed in California, would have required sex offender registration. The bill would also require the Board to deny an application for licensure if the applicant was convicted of any offense that, if committed in California, would have required sex offender registration. Additionally, the bill would include applicants that were disciplined by a different licensing board for an offense that would have also required discipline based on sexual misconduct in California and if the offense was with a patient or with a former patient if the relationship was terminated for the purpose of committing the offense. Furthermore, the bill would prevent applicants from reapplying if their denial was pursuant to these sexual misconduct provisions.

Section 2232 allows the Board to revoke the license of a practitioner who is being required to register as a sex offender in California. AB 1636 would include automatic revocation if the licensee’s conduct in another state would have been subject to sex offender registration in California and if the offense involved current or certain former patients. The bill would also delete the provision that permits disciplined individuals to petition the superior court to determine whether the individual still poses a risk to patients.

Section 2307 explains situations in which the Board may reinstate or modify penalties to disciplined petitioners. AB 1636 would add language that prohibits the Board from reinstating a P&S certificate to individuals whose licensure was surrendered or revoked based on sexual abuse, sexual misconduct, or sexual exploitation, including conduct that occurred outside of California.

At its February 11, 2022 quarterly meeting, staff presented its legislative analysis on AB 1636 to the Board, including its recommended amendments. According to the staff analysis, the bill should be amended to address requirements of section 480 of the Business and Professions Code, which prevents the Board from denying licensure based on a conviction if the applicant obtained a certificate of rehabilitation or expungement. [24:1 CRLR 66] Without amending language to clarify that AB 1636 supersedes section 480, the Board would not be able to deny applicants with expunged sexual offenses. Furthermore, while the bill proposes language to include licensure denial or revocation for conduct that occurred outside of California, the language is limited to situations in which the offense would have required sex offender registration and involved current or former patients. Therefore, an individual convicted in another state may not get automatic denial or revocation, even though they would if the same crime was committed in California. MBC recommends that the proposed language is adjusted to address this discrepancy, as well as clarify that bill’s restrictions on reinstatement applies to individuals who apply on or after the bill’s effective date. At the time of writing, the bill is pending before the Assembly Business and Professions Committee.

During the quarterly meeting, Kerrie Webb, Staff Counsel, stated that this gives the legislature the opportunity “to give the Board the tools it needs to provide better public protection in this area and in others.” 2:24:40. TJ Watkins, a public member, expressed concern that the bill would reach only a small population of patients rather than addressing more common issues that the Board faces. 2:38:50. Assemblymember Akilah Weber, the author of the bill, stated during public comment that “AB 1636 seeks to maintain confidence in the medical profession by ensuring physicians convicted of sexual misconduct automatically have their license revoked and cannot acquire or have it reinstated.” 2:40:01. Assemblymember Weber also discussed the investigation report conducted by the Los Angeles Times in 2021, which stated that the Board reinstated licenses to about 60 percent of petitioning physicians that had their licenses previously revoked or surrendered for sexual misconduct. The Board motioned to support the bill if amended to include all of the staff recommendations.