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Does SB 731 Apply to Licensing Actions for Physicians in California?

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Does SB 731 Apply to Licensing Actions for Physicians in California?

SB 731 Seals Criminal Convictions - How does this affect doctors?   If a California Medical License has been suspended for a criminal conviction does SB 731 end the suspension?  If there is an ongoing process does the sealing of the record stop the process?

SB 731 is the law in California. It was signed in 2022 and is effective starting July of 2024.
The law used to be that after successful completion of probation or parole (with many exceptions) convicted people could get their charges expunged. SB 731 goes further and makes the conviction virtually invisible. In reality the historical fact of conviction is all over the internet but functionally it is deemed “invisible”.

The statute is also not applicable to serious felonies defined in Section 1192.7 of the Penal Code, violent felonies defined in Section 667.5 of the Penal Code, or a felony requiring registration pursuant to Section 290 of the Penal Code.

The new law automatically seals records. The new law excludes violent felonies and most sex crimes from being hidden. But except for these exceptions most files are sealed. This means that drug offenders can become lawyers and presumably doctors. So what does this mean for physician discipline and licensing? It is not clear.

Business & Professions Code section 2236 ensures that doctors convicted of crimes are reported to the Medical Board of California.

It states in relevant part:

(c) The clerk of the court in which a licensee is convicted of a crime shall, within 48 hours after the conviction, transmit a certified copy of the record of conviction to the board. The division may inquire into the circumstances surrounding the commission of a crime in order to fix the degree of discipline or to determine if the conviction is of an offense substantially related to the qualifications, functions, or duties of a physician and surgeon.

(d) A plea or verdict of guilty or a conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of this section and Section 2236.1. The record of conviction shall be conclusive evidence of the fact that the conviction occurred.

Business & Professions Code § 802.1 requires self reporting by the physician. The physician self reporting rule is that a doctor must self-report within 30 days of the event. “The event” includes an Indictment or Information which is a felony charge. (So no conviction needed to trigger the report.) Any conviction even a no contest misdemeanor conviction.

So what if there is a report and the Medical Board initiates an investigation. The investigation drags on and an Accusation is filed as the Board believes the conviction affects the physician’s ability to safely practice. A hearing is set and before the hearing AB 731's provisions kick in.

California’s Department of Justice reviews the statewide criminal justice database monthly to automatically clear eligible records. The record is sealed. Strangely, it is the Department of Justice that is prosecuting the Accusation against the doctor and it is also the entity that is sealing his/her records.

Now the Medical Board is not an employer but the statute is clear that once a record is sealed an employer hsa no access. Is the right to practice medicine related to the right to have employment unfettered by the sealed conviction?

SB 731 does apply to professional licensing and logically it should apply to licensing actions.

On the other hand, law enforcement, the Courts, and the State Justice Department keep access to the records. For these entities there is no sealing.

The disciplinary system is a public safety system. Business & Professions Code section 2229 makes that clear. It reads:

§ 2229. Exercise of disciplinary authority; protection of public; rehabilitation

(a) Protection of the public shall be the highest priority for the Division of Medical Quality, the California Board of Podiatric Medicine, and administrative law judges of the Medical Quality Hearing Panel in exercising their disciplinary authority.

(b) In exercising his or her disciplinary authority an administrative law judge of the Medical Quality Hearing Panel, the division, or the California Board of Podiatric Medicine, shall, wherever possible, take action that is calculated to aid in the rehabilitation of the licensee, or where, due to a lack of continuing education or other reasons, restriction on scope of practice is indicated, to order restrictions as are indicated by the evidence.

(c) It is the intent of the Legislature that the division, the California Board of Podiatric Medicine, and the enforcement program shall seek out those licensees who have demonstrated deficiencies in competency and then take those actions as are indicated, with priority given to those measures, including further education, restrictions from practice, or other means, that will remove those deficiencies. Where rehabilitation and protection are inconsistent, protection shall be paramount.

So there is no dispute that upon arrest or conviction the disciplinary process can start but if the process is slow does the sealing stop the process? If there is a conviction and a license suspension does that suspension end when the conviction “Vanishes”?

Remember the language of section 2229 that “where rehabilitation and protection are inconsistent, protection shall be paramount”. On the other hand new laws tend to override old laws when there is a conflict. The “law” presumes that the Legislature and Governor understood that the old law existed and intended that the new supersedes the old law.

Even if a doctor has resumed practice can the doctor revoke or seal the medical finding based upon the vanishing of the original conviction?

As the Court of Appeal said in 2002 there is an inherent power to regulate the medical profession.

The Medical Board of California, through its Division of Medical Quality, has authority to investigate, to commence disciplinary actions, and to take disciplinary action against a physician's license based on unprofessional conduct as defined in the Medical Practice Act. (§ 2000 et seq.; Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 7, 56 Cal.Rptr.2d 706, 923 P.2d 1.) This authority to determine a party's fitness to engage in a business or profession derives from the state's inherent power to regulate the use of property to preserve the public health, morals, comfort, order, and safety. (Arnett, at p. 7, 56 Cal.Rptr.2d 706, 923 P.2d 1; Hughes v. Board of Architectural Examiners, supra, 17 Cal.4th at p. 790, 72 Cal.Rptr.2d 624, 952 P.2d 641.)
Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 768–769

Does this “inherent power” supersede the invisibility statute (as I call SB 731)?

Is there an Equal Protection argument under the 14th Amendment? If teachers can escape the consequences of a prior drug conviction why can’t doctors?

This discussion could continue for many pages with additional example, nuances and arguments. But the point is clear. SB 731 has broad implications for doctors who have been or will be subject to discipline for criminal arrests and convictions. How the protections apply to the medical profession is hazy, unclear, confusing, undecided and most of all - subject to the whims and changing tides of politics, appellate law and judicial interpretations at the administrative law and Superior Court level.

Daniel Horowitz is a State of California Certified Criminal Defense Specialist (State of California Board of Legal Specialization). Daniel teaches criminal law at seminars and courses that include preparation for other defense attorneys seeking to qualify as criminal defense specialists. His combined expertise in California Physician Defense law and criminal law makes him the perfect fit for doctors who have licensing issues tied to criminal events.