Existing law provides for the licensure and regulation of various professions and vocations.

This bill would enact the Athletic Training Practice Act, which would establish the Athletic Trainer Board, until January 1, 2025, within the Department of Consumer Affairs to exercise licensing, regulatory, and disciplinary functions under the act. On or after January 1, 2021, the bill would prohibit a person from practicing as an athletic trainer or using certain titles or terms without being registered with the board. The bill would define the practice of athletic training, and would specify requirements for registration as an athletic trainer, including graduating from a professional degree program in athletic training, and would require a registrant to render athletic training services only under the supervision of a physician and surgeon or osteopathic physician and surgeon. The bill would provide that a registration to practice as an athletic trainer would be valid for 2 years and subject to renewal, would authorize the board to deny, suspend, or revoke a registration for specified reasons, and would establish procedures for the referral of complaints. The bill would specify acts that constitute unprofessional conduct and would make it a misdemeanor for any person to violate the act.

The bill would establish the Athletic Trainers Fund for the deposit of application and renewal fees, as specified, and would make those fees available to the board for the purpose of implementing these provisions upon appropriation by the Legislature. The bill would authorize the Director of Consumer Affairs to seek and receive donations from the California Athletic Trainers Association or any other private person or entity or to obtain loans from existing state funds, as specified, for purposes of obtaining funds for the startup costs of implementing the act. By creating a new crime, and expanding the crime of perjury, this bill would impose a state-mandated local program.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law provides for the licensure and regulation of various professions and vocations.

This bill would enact the Athletic Training Practice Act, which would establish the Athletic Trainer Board, until January 1, 2025, within the Department of Consumer Affairs to exercise licensing, regulatory, and disciplinary functions under the act. On or after January 1, 2021, the bill would prohibit a person from practicing as an athletic trainer or using certain titles or terms without being registered with the board, except as specified. board. The bill would define the practice of athletic training, and would specify requirements for registration as an athletic trainer, including graduating from a professional degree program in athletic training, and would require a registrant to render athletic training services only pursuant to orders from and under the supervision of a physician and surgeon or osteopathic physician and surgeon. The bill would provide that a registration to practice as an athletic trainer would be valid for 2 years and subject to renewal, would authorize the board to deny deny, suspend, or revoke a registration for specified reasons, and would establish procedures for the referral of complaints. The bill would specify acts that constitute unprofessional conduct and would make it a misdemeanor for any person to violate the act.

The bill would establish the Athletic Trainers Fund for the deposit of application and renewal fees, as specified, and would make those fees available to the board for the purpose of implementing these provisions upon appropriation by the Legislature. The bill would authorize the Director of Consumer Affairs to seek and receive donations from the California Athletic Trainers Association or any other private person or entity or to obtain loans from existing state funds, as specified, for purposes of obtaining funds for the startup costs of implementing the act. By creating a new crime, and expanding the crime of perjury, this bill would impose a state-mandated local program.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law provides for the licensure and regulation of various professions and vocations.

This bill would enact the Athletic Training Practice Act, which would establish the Athletic Trainer Board, until January 1, 2023, 2025, within the Department of Consumer Affairs to exercise licensing, regulatory, and disciplinary functions under the act. The On or after January 1, 2021, the bill would prohibit a person from practicing as an athletic trainer or using certain titles or terms without being registered with the board, except as specified. The bill would define the practice of athletic training, and would specify requirements for registration as an athletic trainer, including graduating from a professional degree program in athletic training, and would require a registrant to render athletic training services only pursuant to orders from and under the supervision of a physician and surgeon or osteopathic physician and surgeon. The bill would provide that a registration to practice as an athletic trainer would be valid for 2 years and subject to renewal, would authorize the board to deny or revoke a registration for specified reasons, and would establish procedures for the referral of complaints. The bill would specify acts that constitute unprofessional conduct and would make it a misdemeanor for any person to violate the act.

The bill would establish the Athletic Trainers Fund for the deposit of application and renewal fees, as specified, and would make those fees available to the board for the purpose of implementing these provisions upon appropriation by the Legislature. The bill would authorize the Director of Consumer Affairs to seek and receive donations from the California Athletic Trainers Association or any other private person or entity or to obtain loans from existing state funds, as specified, for purposes of obtaining funds for the startup costs of implementing the act. By creating a new crime, and expanding the crime of perjury, this bill would impose a state-mandated local program.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law provides for the licensure and regulation of various professions and vocations.

This bill would enact the Athletic Training Practice Act, which would establish the Athletic Trainer Board, until January 1, 2023, within the Department of Consumer Affairs to exercise licensing, regulatory, and disciplinary functions under the act. The bill would prohibit a person from practicing as an athletic trainer or using certain titles or terms without being registered with the board, except as specified. The bill would define the practice of athletic training, and would specify requirements for registration as an athletic trainer, including graduating from a professional degree program in athletic training, and would require a registrant to render athletic training services only pursuant to orders from and under the supervision of a physician and surgeon or osteopathic physician and surgeon. The bill would provide that a registration to practice as an athletic trainer would be valid for 2 years and subject to renewal, would authorize the board to deny or revoke a registration for specified reasons, and would establish procedures for the referral of complaints. The bill would specify acts that constitute unprofessional conduct and would make it a misdemeanor for any person to violate the act.

The bill would establish the Athletic Trainers Fund for the deposit of application and renewal fees, as specified, and would make those fees available to the board for the purpose of implementing these provisions upon appropriation by the Legislature. The bill would authorize the Director of Consumer Affairs to seek and receive donations from the California Athletic Trainers Association or any other private person or entity for purposes of obtaining funds for the startup costs of implementing the act. By creating a new crime, and expanding the crime of perjury, this bill would impose a state-mandated local program.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law provides for the licensure and regulation of various professions and vocations. Existing law makes it a crime for a healing arts licensee to disseminate or cause to be disseminated any form of public communication containing a false, fraudulent, misleading, or deceptive statement, claim, or image for the purpose of or likely to induce, directly or indirectly, the rendering of professional services or furnishing of products in connection with the professional practice or business for which he or she is licensed.

This bill would enact the Athletic Training Practice Act, which would, after a determination is made that sufficient funds have been received to pay initial costs of this bill, provide for the licensure and regulation of athletic trainers, as defined. The bill would, after that determination, would establish the Athletic Trainer Licensing Committee Board, until January 1, 2023, within the California Board of Occupational Therapy to implement these provisions, including issuing and renewing athletic training licenses and imposing disciplinary action. Under the bill, the committee would be comprised of 7 members, to be appointed to 4-year terms, except as specified. Commencing 6 months after the committee is established by this bill, the Department of Consumer Affairs to exercise licensing, regulatory, and disciplinary functions under the act. The bill would prohibit a person from practicing as an athletic trainer or using certain titles without a license issued by the committee, or terms without being registered with the board, except as specified. The bill would prohibit, except in specified cases for a specified period, a person from using the title athletic trainer, unless the person is licensed by the committee or other conditions are met. The bill would specify the requirements for licensure, including education, examination, and the payment of a license application fee established by the committee. The bill would define the practice of athletic training and prescribe direction requirements on athletic trainers. training, and would specify requirements for registration as an athletic trainer, including graduating from a professional degree program in athletic training, and would require a registrant to render athletic training services only pursuant to orders from and under the supervision of a physician and surgeon or osteopathic physician and surgeon. The bill would provide that a registration to practice as an athletic trainer would be valid for 2 years and subject to renewal, would authorize the board to deny or revoke a registration for specified reasons, and would establish procedures for the referral of complaints. The bill would specify acts that constitute unprofessional conduct and would make it a misdemeanor for any person to violate the act.

The bill would also establish the Athletic Trainers Fund for the deposit of license application and renewal fees, as specified, and would make those fees available to the committee board for the purpose of implementing these provisions upon appropriation by the Legislature. The bill would authorize the Director of Consumer Affairs to seek and receive donations from the California Athletic Trainers Association or any other private person or entity for purposes of obtaining funds for the startup costs of implementing the act. The bill would require the director to determine that sufficient funds for that purpose have been obtained and to provide notice to the Legislature, the Governor, and on the departments Internet Web site of the determination, as specified. The bill would repeal these provisions on January 1, 2026. By changing the definition of a crime, By creating a new crime, and expanding the crime of perjury, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law provides for the licensure and regulation of various professions and vocations, including those of an athlete agent. vocations. Existing law makes it a crime for a healing arts licensee to disseminate or cause to be disseminated any form of public communication containing a false, fraudulent, misleading, or deceptive statement, claim, or image for the purpose of or likely to induce, directly or indirectly, the rendering of professional services or furnishing of products in connection with the professional practice or business for which he or she is licensed.

This bill would enact the Athletic Training Practice Act, which would, after a determination is made that sufficient funds have been received to pay initial costs of this bill, provide for the licensure and regulation of athletic trainers, as defined. The bill would, after that determination, establish the Athletic Trainer Licensing Committee within the California Board of Occupational Therapy to implement these provisions, including issuing and renewing athletic training licenses and imposing disciplinary action. Under the bill, the committee would be comprised of 7 members, to be appointed to 4-year terms, except as specified. Commencing 6 months after the committee is established by this bill, the bill would prohibit a person from practicing as an athletic trainer or using certain titles without a license issued by the committee, except as specified. The bill would prohibit, except in specified cases for a specified period, a person from using the title athletic trainer, unless the person is licensed by the committee or other conditions are met. The bill would specify the requirements for licensure, including education, examination, and the payment of a license application fee established by the committee. The bill would define the practice of athletic training and prescribe direction requirements on athletic trainers.

The bill would also establish the Athletic Trainers Fund for the deposit of license application and renewal fees, as specified, and would make those fees available to the committee for the purpose of implementing these provisions upon appropriation by the Legislature. The bill would authorize the Director of Consumer Affairs to seek and receive donations from the California Athletic Trainers Association or any other private person or entity for purposes of obtaining funds for the startup costs of implementing the act. The bill would require the director to determine that sufficient funds for that purpose have been obtained and to provide notice to the Legislature, the Governor, and on the departments Internet Web site of the determination, as specified. The bill would repeal these provisions on January 1, 2026. By changing the definition of a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law provides for the licensure and regulation of various professions and vocations, including those of an athlete agent. Existing law makes it a crime for a healing arts licensee to disseminate or cause to be disseminated any form of public communication containing a false, fraudulent, misleading, or deceptive statement, claim, or image for the purpose of or likely to induce, directly or indirectly, the rendering of professional services or furnishing of products in connection with the professional practice or business for which he or she is licensed.

This bill would enact the Athletic Training Practice Act, which would, after a determination is made that sufficient funds have been received to pay initial costs of this bill, provide for the licensure and regulation of athletic trainers, as defined. The bill would, after that determination, establish the Athletic Trainer Licensing Committee within the California Board of Occupational Therapy to implement these provisions, including issuing and renewing athletic training licenses and imposing disciplinary action. Under the bill, the committee would be comprised of 7 members, to be appointed to 4-year terms, except as specified. Commencing 6 months after the committee is established by this bill, the bill would prohibit a person from practicing as an athletic trainer or using certain titles without a license issued by the committee, except as specified. The bill would prohibit, except in specified cases for a specified period, a person from using the title athletic trainer, unless the person is licensed by the committee or other conditions are met. The bill would specify the requirements for licensure, including education, examination, and the payment of a license application fee established by the committee. The bill would define the practice of athletic training and prescribe direction requirements on athletic trainers.

The bill would also establish the Athletic Trainers Fund for the deposit of license application and renewal fees, as specified, and would make those fees available to the committee for the purpose of implementing these provisions upon appropriation by the Legislature. The bill would authorize the Director of Consumer Affairs to seek and receive donations from the California Athletic Trainers Association or any other private person or entity for purposes of obtaining funds for the startup costs of implementing the act. The bill would require the director to determine that sufficient funds for that purpose have been obtained and to provide notice to the Legislature, the Governor, and on the departments Internet Web site of the determination, as specified. The bill would repeal these provisions on January 1, 2026. By changing the definition of a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 3110 (Mullin) - Athletic trainers

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

Establishes a registration program under a new Athletic Training Board (Board) within the Department of Consumer Affairs (DCA) and prohibits a person from practicing athletic training, as defined, or holding himself or herself out as an athletic trainer, unless they are registered with the Board.

Fiscal Impact:

The Board will require $1.6 million in fiscal year (FY) 2019-20, $1.3 million in FY 2020-21, and $1.2 million ongoing annually thereafter to fund 6.0 (1.0 two-year limited-term (LT) and 5.0 permanent) positions and operations expenses and equipment (OE&E) to the Athletic Trainer's Fund, which would need a General Fund or special fund loan for start-up costs if private funds were not available, as well as one-time costs to the Department of Justice exceeding $100,000 for background checks.

For additional detail, please see Staff Comments.

Background:

Four states (Colorado, Minnesota, Oregon and West Virginia require registration whereby an individual submits information (name, address, qualifications) in order to practice as an athletic trainer. 2 states (New York and South Carolina) have a certification/title protection model under which an individual meets predetermined standards to be able to use the title of athletic trainer and where uncertified individuals can perform athletic trainer duties but cannot use the title of AT. 43 states (Alabama, Alaska, Arizona, Arkansas, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wisconsin and Wyoming license athletic trainers, requiring that individuals graduate from a bachelor’s degree program accredited by Commission on Accreditation of Athletic Training Education (CAATE), pass the comprehensive test administered by BOC, and meet ongoing educational requirements in order to stay licensed. These states provide that it is illegal to practice as an athletic trainer without obtaining a license.

Proposed Law:

1. The bill creates the Board within DCA until January 1, 2025 comprised of three athletic trainers appointed by the Governor, three public members, one each appointed by the Governor, Senate Committee on Rules and Speaker of the Assembly and one physician and surgeon licensed by the Medical Board of California (MBC) or one osteopathic physician and surgeon licensed by the Osteopathic Medical Board of California (OMBC) appointed by the Governor. Subjects the board to review by the appropriate policy committees of the Legislature.

• Requires the Board to adopt, repeal, and amend regulations as may be necessary and authorizes the Board, prior to adopting regulations, to consult the professional standards issued by the National Athletic Trainers’ Association (NATA), the Board of Certification, Inc. (BOC), the Commission on Accreditation of Athletic Training Education (CAATE), or any other nationally recognized professional athletic training organization.
• Requires the Board to maintain a publicly accessible registry of all registrants that meet the requirements of this bill.
• Defines “athletic activity”, “athletic trainer”, “athletic training”, “athlete”, as specified.
• Provides that the practice of athletic training does not include grade 5 spinal manipulations, the diagnosis of disease, or the practice of medicine.
• Outlines the administrative requirements for registration by the Board including items on the application, being 18 or older, providing a statement that the applicant is not addicted to alcohol or controlled substances and has not committed acts or crimes substantially related to safely being an athletic trainer, education and employment information, whether the applicant is certified by BOC, completing a criminal background history check, and paying the application fee.
• Makes a registration issued by the Board valid for two years. Requires the Board to renew a registration if the registrant pays the renewal fee, submits verification of place of employment, verification of certification and other credentials, verification of the address of record and if the registrant attest that he or she has not been disciplined or convicted of a crime that would be grounds for revocation. Outlines the reasons the Board may deny, suspend or revoke a registration.
• Requires the Board to refer complaints of unlicensed practice complaints to the appropriate licensing board and law enforcement agencies and refer complaints of Incompetent practice and unprofessional conduct to the registrant’s employer of record, to BOC and to the appropriate licensing board as applicable.
• Requires the Board to track and report data relating to complaints, registrants, instances of consumer harm, recommendations for improving athlete and consumer safety, and any other information the board finds necessary, to the appropriate policy committees of the Legislature by July 1, 2023.

Related Legislation:

• AB 1510 (Dababneh) of 2017 would have established the licensure and regulation of athletic trainers through the creation of an Athletic Trainer Licensing Committee under the Occupational Therapy Board of California. The bill was never heard in its second referred policy committee in the Assembly.
• AB 161 (Chau) of 2015 would have established certification and training requirements for athletic trainers and prohibit individuals from calling themselves athletic trainers unless they meet those requirements. The bill was vetoed by Governor Brown who wrote the conditions set forth in the bill “impose unnecessary burdens on athletic trainers without sufficient evidence that they are really needed.
• AB 1890 (Chau) of 2014 was identical to AB 161. The bill was vetoed by Governor Brown for the same reasons, above.
• AB 864 (Skinner) of 2013 would have established the licensure and regulation of athletic trainers through the creation of an Athletic Trainer Licensing Committee under the Physical Therapy Board of California. The bill was held under submission in the Assembly Committee on Appropriations.
• SB 1273 (Lowenthal) of 2012 was very similar to AB 864. The bill failed passage in the Senate Business and Professions Committee.
• AB 1647 (Hayashi) of 2010 would have established certification and training requirements for athletic trainers and prohibited individuals from calling themselves athletic trainers unless they meet those requirements. The bill was vetoed by Governor Schwarzenegger.
• SB 284 (Lowenthal) of 2007 would have enacted the Athletic Trainers Registration Act prohibiting a person from representing himself or herself as a “certified athletic trainer,” unless he or she is registered by an athletic training organization. The bill was vetoed by Governor Schwarzenegger.
• 
  SB 1397 (Lowenthal) of 2006 would have enacted the Athletic Trainers Certification Act, prohibiting a person from representing him or herself as an athletic trainer unless he or she is certified as an athletic trainer by an athletic training organization, as defined. The bill was vetoed by Governor Schwarzenegger.
• AB 614 (Lowenthal) of 2003 would have required the DCA to submit a recommendation to the Legislature as to whether the state should license and regulate athletic trainers by January 1, 2006, if the DCA is provided with an occupational analysis of persons providing athletic trainer services by July 1, 2005. This bill was held in this Committee to allow JCBCCP to examine whether athletic trainers should be licensed as part of the "sunrise" process.
• AB 2789 (Lowenthal) of 2002 would have required the Department of Consumer Affairs to review the need for licensing of athletic trainers and undertake an occupational analysis. This bill was held under submission in the Assembly Committee on Appropriations.
• SB 2036 (McCorquodale, Chapter 908, Statutes of 1994) expanded existing law into the current Sunrise process, covering the creation of new categories of licensed professionals and the revision of the scope of practice of an existing category of licensed professional.

Staff Comments: The Department of Consumer Affairs provided the following additional detail and assumptions for the fiscal analysis.

Licensing:  The Board projects there are currently approximately 3,100 Athletic Trainers practicing in California that will apply for licensure between the first two years (2019-20 and 2020-21).  During these first two years of registration, the Board anticipates a spike in workload related to processing initial applications, which consists of evaluating the candidate’s background, education, and experience. 

After the initial influx of registrants has passed, ongoing initial registration workload is anticipated to be reduced and based on a growth factor of three percent. Conversely, renewal registration workload will increase as the registrant population grows.

As a result, the Board will require $257,000 in 2019-20, $233,000 in 2020-21, and $151,000 annually thereafter to fund 3.0 positions (2.0 Staff Services Analysts (SSA) and 1.0 Office Technician (OT)) to meet the anticipated licensing workload.  1.0 SSA will be required on a two-year LT basis to meet this initial influx of new applications and 1.0 SSA is required on an ongoing basis to meet permanent workload.  The Board will also require 1.0 OT to support licensing staff. 

Enforcement: Based on 3,100 total licensees, DCA estimates 60 to 100 complaints and investigations per year, but will not materialize immediately.  Typically for newly implemented programs, enforcement-related workload increases as individuals become registered and subject to compliance.

The Board indicates it will require $118,000 in 2019-20 and $110,000 annually thereafter to fund 1.0 Associate Governmental Program Analyst (AGPA) to meet the Board’s enforcement workload.  

The AGPA will handle the Board’s investigation process.  The investigation process consists of reviewing and investigating compliant and making recommendations as necessary.

Additionally, the Board will require $150,000 on a permanent basis to fund Attorney General (AG) and Office of Administrative Hearings (OAH) enforcement costs.  However, this funding will not be required until 2020-21 and ongoing thereafter because these costs are not anticipated to materialize until then. 

Administrative: The Board will require $218,000 in 2019-20 and $202,000 annually thereafter to fund 1.0 Executive Officer and 1.0 OT to provide administrative support. 

Facilities: The Board requires a minimum of $250,000 one-time in 2019-20 to fund build-out and tenant improvement costs for office space.  The Board will also require approximately $50,000 in 2019-20 and annually thereafter to fund rent costs. 

Information Technology: DCA Office of Information Services indicates this bill results in approximately $162,500 in one-time costs to create the Board’s website and licensing/enforcement information technology (IT) platforms. 

The Board will require $22,000 annually thereafter to fund ongoing IT maintenance costs. 

DCA Pro Rata: DCA provides a wide range of programmatic and administrative services to the boards, bureaus, and other entities within DCA.  The distribution of costs (or “pro rata”) for these services is budgeted to all the DCA entities receiving these services.  DCA estimates pro rata costs of $374,000 beginning in 2019-20 and annually thereafter to fund pro rata costs for programmatic and administrative services provided by DCA. 

-- END --

SENATE COMMITTEE ON

BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT

Senator Jerry Hill, Chair

2017 - 2018 Regular

Bill No: Hearing Date: June 25, 2018

Subject:

SUMMARY: Establishes a registration program under a new Athletic Training Board (Board) within the Department of Consumer Affairs (DCA) and prohibits a person from practicing athletic training, as defined, or holding himself or herself out as an athletic trainer, unless they are registered with the Board.

Existing law:

1. Provides for the licensure and regulation of various professions and businesses by some 25 boards, 3 committees, 8 bureaus, 1 program, and 1 commission within the DCA under various licensing acts within the Business and Professions Code (BPC) (BPC § 1 et. seq.)
2. Authorizes the DCA to levy a charge for estimated administrative expenses, not to exceed the available balance in any appropriation for any one fiscal year, in advance on a pro rata share basis against any of the boards, bureaus, commissions, divisions, and agencies, at the discretion of the director and with the approval of the Department of Finance. (BPC § 201)
3. Establishes the Unfair Practices Act which defines unfair competition as any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising. (BPC § 17000 et. seq.)

This bill:

1. States findings and declarations that California is the only state that does not currently regulate the practice of athletic training which creates the risk that individuals who have lost or are unable to obtain licensure in another state may come to California to practice, thereby putting the public in danger and degrading the standards of the profession as a whole; that there is a pressing and immediate need to regulate the profession of athletic training in order to protect the public health, safety, and welfare, a need which is particularly important because athletic trainers often work with minors; and that there is also a pressing and immediate need to regulate the profession of athletic training because the absence of regulation puts California businesses, colleges, universities, and other organizations at risk of liability solely because of the unlicensed status of athletic trainers in the state.
2. Creates the Board within DCA until January 1, 2025 comprised of three athletic trainers appointed by the Governor, three public members, one each appointed by the Governor, Senate Committee on Rules and Speaker of the Assembly and one physician and surgeon licensed by the Medical Board of California (MBC) or one osteopathic physician and surgeon licensed by the Osteopathic Medical Board of California (OMBC) appointed by the Governor. Subjects the board to review by the appropriate policy committees of the Legislature. Requires the Board to adopt, repeal, and amend regulations as may be necessary and authorizes the Board, prior to adopting regulations, to consult the professional standards issued by the National Athletic Trainers’ Association (NATA), the Board of Certification, Inc. (BOC), the Commission on Accreditation of Athletic Training Education (CAATE), or any other nationally recognized professional athletic training organization. Specifies that the Board shall give protection of the public the highest priority and whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.
3. Requires the Board to maintain a publicly accessible registry of all registrants that meet the requirements of this bill.
4. Defines “athlete” as a person who participates in an athletic activity.
5. Defines “athletic activity” as participation in exercise, sport, game, recreation, wellness, fitness, performing arts, or employment activities involving an athlete that requires physical strength, range of motion, flexibility, body awareness and control, speed, stamina, or agility.
6. Defines “athletic trainer” as a person who practices athletic training and who only uses the title “athletic trainer”, “licensed athletic trainer”, “certified athletic trainer,” “registered athletic trainer,” “athletic trainer certified,” “a.t.,” “l.a.t,” “c.a.t.,” “r.a.t.,” “a.t.c.,” or any other variation of these terms, or any other similar terms indicating that the person is an athletic trainer if the person:
7. Is registered with the Board beginning January 1, 2021.
8. Is certified by the BOC or its predecessors or successors or another nationally accredited athletic trainer certification agency approved and recognized by the Board and the Board has received official verification of this certification and the certification is maintained.
9. Only renders athletic training services under the supervision of a physician and surgeon licensed by the MBC or OMBC. Supervision means services are provided either under a verbal order by a physician and surgeon who is present when the services are provided or, if the physician is not present, under a written order, telecommunication, or an athletic training treatment plan or protocol that: specifies the athletic training services, settings, and referral requirements specific to the athletic trainer’s individual training and competence; is established with and approved by the supervising physician and surgeon or osteopathic physician and surgeon; accounts for the supervising physician and surgeon’s availability to the athletic trainer as determined by the supervising physician and surgeon.
10. Refers an athlete to an appropriate licensed health care provider when the management of the injury or condition does not fall within their competence.
11. Does not provide, offer to provide, or represent that he or she is qualified to provide any treatment that he or she is not qualified to perform by his or her professional education, advanced postprofessional study, license, or individual training and competence.
12. Specifies that a person who is currently using one of the titles in 6) above and is covered under a collective bargaining agreement does not have to register until the parties to that bargaining agreement renew that agreement. At that time, a person shall not use the titles listed in 6) above unless they register and meet the requirements for registration but is authorized to choose a different title to describe their positions under the new collective bargaining agreement.
13. Defines “athletic training” as:
14. Risk management and injury or illness prevention through preparticipation screening and evaluation, educational programs, physical conditioning and reconditioning programs, application of commercial products, use of protective equipment, promotion of healthy behaviors, and reduction of environmental risks.
15. The clinical evaluation and assessment of an injury sustained or exacerbated while participating in athletic activity or a condition exacerbated while participating in athletic activity, for which the athletic trainer has had formal training during his or her professional education program or advanced postprofessional study and falls within the practice standards of athletic training, by obtaining a history of the injury or condition, inspection and palpation of the injured part and associated structures, and performance of specific testing techniques related to stability and function to determine the extent of an injury.
16. The immediate care of an injury sustained or exacerbated while participating in athletic activity or a condition exacerbated while participating in athletic activity, for which the athletic trainer has had formal training during his or her professional education program or advanced postprofessional study and falls within the practice standards of athletic training, by the application of first aid, and emergency procedures, techniques, and equipment for nonlife-threatening or life-threatening injuries or conditions.
17. The rehabilitation and reconditioning from an injury sustained or exacerbated while participating in athletic activity and reconditioning from a condition, for which the athletic trainer has had formal training during his or her professional education program or advanced postprofessional study and falls within the practice standards of athletic training, including, but not limited to, the application of physical agents and modalities, therapeutic exercise, manual therapy and massage, standard reassessment techniques and procedures, commercial products and durable medical equipment, and educational programs, under the supervision of a physician and surgeon as described in subdivision (c) of Section 2697.5.
18. States that the practice of athletic training does not include grade 5 spinal manipulations, the diagnosis of disease, or the practice of medicine.
19. Outlines the administrative requirements for registration by the Board including items on the application, being 18 or older, providing a statement that the applicant is not addicted to alcohol or controlled substances and has not committed acts or crimes substantially related to safely being an athletic trainer, education and employment information, whether the applicant is certified by BOC, completing a criminal background history check, and paying the application fee. Makes a registration issued by the Board valid for two years. Requires the Board to renew a registration if the registrant pays the renewal fee, submits verification of place of employment, verification of certification and other credentials, verification of the address of record and if the registrant attest that he or she has not been disciplined or convicted of a crime that would be grounds for revocation. Outlines the reasons the Board may deny, suspend or revoke a registration.
20. Requires the Board to refer complaints of unlicensed practice complaints to the appropriate licensing board and law enforcement agencies and refer complaints of Incompetent practice and unprofessional conduct to the registrant’s employer of record, to BOC and to the appropriate licensing board as applicable.
21. Requires the Board to track and report data relating to complaints, registrants, instances of consumer harm, recommendations for improving athlete and consumer safety, and any other information the board finds necessary, to the appropriate policy committees of the Legislature by July 1, 2023.

FISCAL EFFECT: This bill is keyed fiscal by Legislative Counsel. According to the Assembly Committee on Appropriations analysis dated May 16, 2018, this bill will result in $1.6 million in 2019-20, $1.3 million in 2020-21, and $1.2 million ongoing to the Athletic Trainer's Fund, which would need a General Fund or special fund loan for start-up costs if private funds were not available, as well as one-time costs to the Department of Justice exceeding $100,000 for background checks.

COMMENTS:

1. Purpose. The Author is the Sponsor of this bill, working closely with the California Athletic Trainers Association (CATA). According to the Author, “the profession of athletic training is unregulated in California under existing law. There is an urgent and compelling need to regulate the profession of athletic training to protect the public, protect employers of athletic trainers and protect athletic trainers.”

The Author states that “Athletic trainers are health care professionals who are often charged with managing serious medical conditions such as concussions, heat illness, sudden cardiac arrest as well as a myriad of musculoskeletal issues like dislocations and fractures. Athletic trainers are required to complete an accredited athletic training education program at a college or university that culminates in at least a bachelor's degree in athletic training and achieve national athletic training certification through the Board of Certification, Inc…California is the only state that does not regulate the profession of athletic training. Currently anyone can call themselves an athletic trainer, regardless of whether they have any education or are nationally certified. A recent CIF survey of athletic directors with an approximately 90% response rate, and other verification indicate that there are at least 150 high schools currently employing an unqualified, non-certified individual who is practicing as an athletic trainer without the requisite education and training. This means hundreds of thousands of young athletes are unknowingly exposed to unqualified individuals purporting to be a health care professional and are managing injuries and conditions and giving medical advice to vulnerable athletes and their parents.

In California, because there is no entity that regulates athletic trainers, there is no accurate, systemic way for the public to report evidence of harm against athletic trainers or those posing as athletic trainers, and have those reports investigated or even tracked. There is mostly only anecdotal evidence. In the last two years, the CATA has fielded 80 complaints broken down as follows:

• Non-BOC certified person employed/volunteering as an Athletic Trainer – 50
• Unsupervised athletic training students – 15
• Harm to Patient – 8
• Licensed health-care professional claiming to be an Athletic Trainer – 6
• Other - (violation of patient privacy via social media) - 1”

The Author states that there is proof of harm in other states including suspended/revoked licenses, suspended/revoked certifications and lawsuits against athletic trainers. The public in those states have recourse to a board or committee with investigative and true disciplinary power.

The Author also notes that “Currently athletic trainers practice in a legal grey area. Employers of athletic trainers in sectors such as education, healthcare, professional sports and industry are concerned that there is no state sanctioned scope of practice to delineate what athletic trainers can and cannot do. In health care settings, athletic trainers are often the only professionals these employers hire that aren't regulated. This creates a lack of uncertainty that increases the employers' risk of liability. Athletic trainers in some settings, especially in collegiate and professional sports and performing arts, are required to travel outside of the state as part of their job. In an increasing number of states, when an athletic trainer travels with their team or group and is performing his/her duties, they are practicing outside of that state's law solely because they aren't regulated. This puts employers in the untenable situation of having to choose between continuing to use their athletic trainer and increasing their liability or having to contract an athletic trainer who is regulated in that state to provide care but is unfamiliar with their athletes or performers and management and is unable to provide any continuum of care.”

1. Athletic Trainers and Athletic Training. The Legislature uses a “Sunrise Model” for the purpose of assessing requests for new or increased occupational regulation, including the creation of any new licensing scheme or licensing entity within the DCA. Pursuant to the Government Code Sections 91488 et. seq. provisions and the Rules of this Committee, the CATA submitted a completed “Sunrise Regulatory Request Questionnaire” (Sunrise Questionnaire) in November, 2017 in support of its proposal for licensure (at the time, a bill proposing licensure was moving through the Legislative process).

According to information contained in the sunrise questionnaire, athletic training is listed by the American Medical Association, Health Resources Services Administration, the Department of Health and Human Services, and Centers for Medicare and Medicaid Services as an allied health profession. Athletic trainers work in collaboration with a physician and their education is predicated upon a formalized relationship with a physician, working under established guidelines. According to the sunrise questionnaire, athletic trainers evaluate injuries and determine a patient’s disposition, respond to emergencies and make “split second decisions” regarding the management of an injury as well as making decisions regarding the course of rehabilitation. Athletic trainers also make “immediate decisions regarding serious conditions such as concussion, spinal cord injury, heat illness and sudden cardiac arrest without the intervention or advice of other health care professionals” in situations where an incorrect decision could lead to a catastrophic or fatal outcome.

An individual can become an athletic trainer by graduating with a minimum of a bachelor’s degree from an accredited athletic training education program and by passing a national certification examination offered by Board of Certification, Inc. (BOC). According to the sunrise questionnaire, 70 percent of athletic trainers practicing today hold a master’s degree or higher. Athletic trainers, like other health care professionals, take science based courses in anatomy, physiology, chemistry and physics and must understand all systems of the body and their normal and pathological functions, including biochemical functions. Athletic training education also includes didactic instruction and clinical training in risk management and injury prevention, orthopedic clinical assessment and diagnosis, medical conditions and disabilities, acute care of injuries and illness, therapeutic modalities and conditioning and rehabilitative exercise, psychosocial intervention and referral, nutritional aspects of injuries and illness, health care administration and professional development.

The questionnaire highlights that according to the U.S. Department of Labor, athletic trainers are classified as “learned professionals.” In the Code of Regulations under FLSA Section 213 exemption provision, athletic trainers have advanced and specialized knowledge through academic instruction which puts the athletic training profession in the same classification as professions of law, medicine, theology, accounting, actuarial computation, engineering, and architecture, most of which require state licensure and codes of professional ethics to practice. Athletic trainers are assigned National Provider Identifier (NPI) numbers like other health care professionals. According to the sunrise questionnaire, Department of Labor’s classification of certified athletic trainers as learned professionals “is significant because it affirms that athletic trainers have ‘advanced knowledge . . . in a field of science or learning . . . customarily acquired by prolonged course of specialized knowledge through academic instruction’ ,as outlined in 29 C.F.R. § 541.301(a)–(d).

According to the sunrise questionnaire, currently there are over 3,300 BOC-certified individuals who would qualify for the practices and registration outlined in this bill, who are using the titles this bill would protect. The questionnaire also highlights that the United States Department of Labor, Bureau of Labor Statistics states in the 2016-17 edition of the Occupational Outlook Handbook “Employment of athletic trainers is projected to grow 21 percent from 2014 to 2024, much faster than the average for all occupations. As people become more aware of sports-related injuries at a young age, demand for athletic trainers is expected to increase”.

According to the questionnaire, citing data referenced above in the Author’s statement from the California Interscholastic Federation, over 151 such individuals are currently practicing and/or holding themselves out to be an athletic trainer in secondary schools without the requisite education and qualifications. Included among the individuals who purport to practice athletic training in California secondary schools are administrators, custodians, teachers, coaches, etc.

According to the BOC, approximately 60 percent of certified athletic trainers in California work with athletes in an educational or specific professional setting. Over a third of clinically practicing athletic trainers in California (35 percent) work with in a non-traditional setting with physically active people or “non-athletes”. This is consistent with the national average of over 36 percent of athletic trainers who work with “non-athletes”.

Athletic trainers serve a wide variety of consumers who have sustained injuries or have other medical conditions exacerbated by participation in physical activity. This includes individuals across the lifespan, from young adolescent athletes to adults injured on the job to geriatric individuals post joint replacement procedures. Athletic trainers are typically employed by organizations such as professional sports teams, colleges and universities, high schools, out-patient rehabilitation clinics, hospitals, industry/ corporations, performing arts groups, physicians, the military, and health clubs. In the course of their employment, athletic trainers serve individual consumers associated with these organizations and/or employers.

Clients typically access athletic training practitioners directly. For example, an injured athlete, soldier, police officer or assembly line worker will be directed by a supervisor or “self-refer” to the institution’s athletic trainer for services such as injury prevention, evaluation, treatment, or rehabilitation. In cases of acute injury, the athletic trainer responds to the patient when notified of the injury. These are not referrals in the traditional sense, as no other health care professional is involved. This differs from “direct access” as athletic trainers are required to work under the direction of a physician and will collaborate with them on patient care.

Other health care practitioners may refer patients to athletic trainers for services. Physicians and physical therapists refer their patients to athletic trainers for rehabilitation programs and/or return to activity progression. Athletic training is not a stand-alone profession as certified athletic trainers work under the direction of and in collaboration with physicians.

The sunrise questionnaire notes that athletic trainers are responsible for making a myriad of medical decisions, including life or death decisions regarding acute injuries and conditions in the course of their duties. As they are often the only health care provider present in the crucial minutes that will make the difference between survival or a tragic outcome, they must use sound clinical decision making skills and the entirety of their knowledge and training. They also make regular decisions regarding return to activity, referral and treatment.

Over the last 2 and a half years, the CATA has received 93 complaints from the public regarding actions by both certified and non-certified individuals practicing athletic training, including, as the questionnaire notes, “harm to the public with patients asking the association to initiate disciplinary action against athletic trainers.”

The sunrise document also highlights the potential harm to young athletes who receive services from “unqualified and non-certified individuals” holding themselves out as athletic trainers. This includes giving medical advice to parents who incorrectly assume that the “athletic trainer” their school has hired is qualified to give such advice. Hundreds of thousands of student athletes come in contact with these individuals and unfortunately, albeit predictably, there are hundreds of documented cases of harm resulting to athletes under the care of these unqualified individuals. According to the questionnaire, citing data from the US Department of Labor Division of Practitioner Data Banks, a voluntary repository of malpractice claims in 2000- 2014 indicated that there were cases of athletic trainers successfully sued for “failure to diagnose” or “failure/delay in hospital admission” that resulted in “significant permanent injury” or “major temporary injury”. The questionnaire notes that in addition to malpractice claims there are documented cases of sexual misconduct by practitioners, including rape, child abuse and inappropriate sexual contact with patients. Information in the sunrise questionnaire from the US Department of Labor Division of Practitioner Data Banks noted 590 reports of sanctions to athletic trainers between 2000 and 2014, including sanctions for incompetent practice/harm, practicing beyond the scope of practice and sexual misconduct.

The BOC has documented cases and reports of athletic trainers practicing incompetently or unethically in California. Since 2014, the BOC has closed close to 1,831 cases nationally, including 178 disciplinary cases against athletic trainers with a California address. The causes of disciplinary action in the California cases range from recertification violations and practicing without a license in other states to sexual misconduct/criminal convictions. Currently there are 9 athletic trainers residing in California who have had their BOC certification suspended, but there is no way the BOC can determine if they are still practicing in California. Of note, the BOC has limited ability to investigate complaints against certified practitioners and no statutory authority to limit practice of offenders. In addition, the BOC has no authority to investigate or discipline non-certified individuals posing as athletic trainers.

As all states that regulate athletic training are mandated to report their disciplinary actions and malpractice settlements, the sunrise questionnaire notes that without a regulatory board in California there is no mechanism for consumers and employers to ensure athlete trainers coming in from other states to practice have not been sanctioned and more importantly there is no mechanism for California consumers to report harm. Cases exist where athletic trainers from other states have had their licenses revoked and came to California because they were able to continue practicing despite disciplinary action they faced.

1. Board of Certification. According to their website, BOC was incorporated in 1989 to provide a certification program for entry-level athletic trainers. BOC establishes and regularly reviews both the standards for the practice of athletic training and the continuing education requirements for BOC certified athletic trainers. BOC asserts that is has the only accredited certification program for athletic trainers in the U.S. Additionally, BOC cites accreditation by the National Commission for Certifying Agencies (NCCA) and requirements that it undergo review and re-accreditation every five years through the NCCA. NCCA is the accreditation body of Institute for Credentialing Excellence, a non-profit organization that provides educational, networking, and advocacy resources to the credentialing community, and is charged with evaluating certification organization for compliance with the NCCA Standards for the Accreditation of Certification Programs.

BOC’s website further asserts that they have been responsible for the certification of athletic trainers since 1969. BOC was the certification arm of the professional membership organization of the National Athletic Trainers’ Association until 1989 when BOC became an independent non-profit organization. Athletic trainers currently have the option for certification through BOC. For BOC certification, athletic trainers must have received a minimum of a bachelor’s degree from a National Athletic Training Association (NATA) accredited institution and pass a comprehensive exam. All states currently regulating athletic trainers utilize the BOC examination which is based on the Commission on Accreditation of Athletic Training Education (CAATE). To retain certification, credential holders must continue taking medical-related courses and adhere to the BOC standards of practice.

1. Recognition by Other States. As often noted, athletic trainers have some form of regulatory recognition in every state but California. 4 states (Colorado, Minnesota, Oregon and West Virginia require registration whereby an individual submits information (name, address, qualifications) in order to practice as an athletic trainer. 2 states (New York and South Carolina) have a certification/title protection model under which an individual meets predetermined standards to be able to use the title of athletic trainer and where uncertified individuals can perform athletic trainer duties but cannot use the title of AT. 43 states (Alabama, Alaska, Arizona, Arkansas, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wisconsin and Wyoming license athletic trainers, requiring that individuals graduate from a bachelor’s degree program accredited by Commission on Accreditation of Athletic Training Education (CAATE), pass the comprehensive test administered by BOC, and meet ongoing educational requirements in order to stay licensed. These states provide that it is illegal to practice as an athletic trainer without obtaining a license.

Discussion has focused on the authority for athletic trainers to provide services to individuals other than athletes and in settings that are not specific to those where athletes participate in sports and athletic activities. 27 states appear to authorize athletic trainers to work with athletes (Alabama, Alaska, Arkansas, Colorado, Delaware, Hawaii, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, Ohio, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Virginia, West Virginia and Wyoming) by, in most practice acts, defining “athlete” as a person associated with an educational institution, an organized community sports program or event, or a professional, amateur, or recreational organization or sports club who participates in games, sports, recreation, or exercise requiring physical strength, flexibility, range of motion, speed, stamina, or agility. 15 states (Arizona, Florida, Georgia, Iowa, Maryland, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Oregon, Tennessee, Vermont and Wisconsin) define athlete more broadly as a person participating in exercises, sports, games, or recreation requiring physical strength, agility, flexibility, range of motion, speed, or stamina. Kansas and Oklahoma authorize athletic trainers to evaluate and treat athletes but do not explicitly define the term “athlete.” New York and South Carolina slightly expand athletic trainers’ practice settings, allowing them to provide instruction to “communities in the area of care and prevention of athletic injuries.” New Mexico allows athletic trainers to practice in any of the settings approved by NATA. On the more restrictive side, Connecticut explicitly prohibits athletic trainers from evaluating and treating “other physically active populations” besides athletes, including performing artists, law enforcement officers, firefighters, military, and some youth athletes. The language currently in this bill defining “athlete”, and thus authorizing athletic training services for those “athletes” is modeled after Wisconsin statute.

1. Licensure, Recognition and Regulation. According to a 2002 article featured in the Yale Journal of Regulation, to protect the public from potentially harmful health services rendered by unqualified people, each state has enacted licensing laws, or practice acts. The article noted that typically, these laws do three things: (1) They define the practice of the profession in question; (2) they limit that practice to people who satisfactorily complete a specified training regime and pass an examination; and (3) they restrict to license holders both the use of the professional title or credentials and the performance of the defined practice functions.

According to “A Theory of Regulation: A Platform for State Regulatory Reform”, 5:2 CAL. REG. L. REP. 3 (Spring 1985), “Government should regulate a particular trade or profession only after an honest assessment of the marketplace and any flaws which present a threat of irreparable harm, or prevent normal marketplace functioning from driving out incompetent, dishonest, or impaired practitioners. The article outlines that “licensing is one form of regulation but should be reserved for trades and professions in which incompetence is likely to cause irreparable harm — that is, harm for which money cannot compensate. If there is likely irreparable harm, then a prior restraint- type barrier to entry (licensing) which addresses and prevents that precise harm should be imposed; additionally, the licensing agency should set industrywide standards of conduct and ethics, and police violations of those standards through a vigorous enforcement program”. According to the article, in the absence of probable irreparable harm, numerous regulatory alternatives to licensing exist, including the posting of a bond to ensure a fund to compensate injured consumers, a certification program which has the effect of disclosing information to consumers about the qualifications of a practitioner and protects the use of a title or a permit program, as some examples.

A practice act along with licensure confers the exclusive right to practice a given profession on practitioners who meet specified criteria related to education, experience, and examination, and often is embodied in a statutory licensing act (i.e., those who are not licensed cannot lawfully practice the profession). A practice act is the highest and most restrictive form of professional regulation, and is intended to avert severe harm to the public health, safety or welfare that could be caused by unlicensed practitioners.

A title act and a certification or registration program, on the other hand, reserves the use of a particular professional (named) designation to practitioners who have demonstrated specified education, experience or other criteria such as certification by another organization. A title act typically does not restrict the practice of a profession or occupation and allows others to practice within that profession; it merely differentiates between practitioners who meet the specified criteria, and are authorized by law to represent themselves accordingly, (usually by a specified title) and those who do not. Some title acts also include a state certification or registration program, or reliance on a national certification or registration program, so that those who use the specified title, and hold themselves out to the public, have been certified or registered by a state created or national entity as having met the specified requirements. This entity may also regulate to some extent the activities of the particular profession by setting standards for the profession to follow, and to also provide oversight of the practice of the profession by reporting unfair business practices or violations of the law and either denying or revoking a certification or registration if necessary.

In the past number of years, the Committee has considered licensure proposals for professions, including massage therapists, makeup artists and geriatric health care assistants, in addition to athletic trainers.

1. Little Hoover Commission Report on Occupational Licensing. Recent studies and reports have focused on the impacts of licensing requirements for employment and on individuals seeking to become employed. According to a July 2015 report on occupational licensing released by the White House, strict licensing creates barriers to mobility for licensed workers, citing several groups of people particularly vulnerable to occupational licensing laws, including former offenders, military spouses, veterans and immigrants.

In October 2016, the Little Hoover Commission released a report entitled Jobs for Californians: Strategies to Ease Occupational Licensing Barriers. The report noted that one out of every five Californians must receive permission from the government to work, and for millions of Californians that means contending with the hurdles of becoming licensed. The report noted that many of the goals to professionalize occupations, standardize services, guarantee quality and limit competition among practitioners, while well intended, have had a larger impact of preventing Californians from working, particularly harder-to-employ groups such as former offenders and those trained or educated outside of California, including veterans, military spouses and foreign-trained workers. The study found that occupational licensing hurts those at the bottom of the economic ladder twice: first by imposing significant costs on them should they try to enter a licensed occupation and second by pricing the services provided by licensed professionals out of reach.

The report found that California compares poorly to the rest of the nation in the amount of licensing it requires for occupations traditionally entered into by people of modest means. According to the report, researchers from the Institute for Justice selected 102 lower-income occupations, defined by the Bureau of Labor Statistics as making less than the national average income, ranging from manicurist to pest control applicator. Of the 102 occupations selected, California required licensure for 62, or 61 percent of them. According to the report, California ranked third most restrictive among 50 states and the District of Columbia, following only Louisiana and Arizona. California ranked seventh of 51 when measuring the burden imposed on entrants into these lower- and moderate-income occupations: on average, California applicants must pay $300 in licensing fees, spend 549 days in education and/or training and pass one exam.

1. Prior Related Legislation. AB 1510 (Dababneh) of 2017 would have established the licensure and regulation of athletic trainers through the creation of an Athletic Trainer Licensing Committee under the Occupational Therapy Board of California. (Status: The bill was never heard in its second referred policy committee in the Assembly.)

AB 161 (Chau) of 2015 would have established certification and training requirements for athletic trainers and prohibit individuals from calling themselves athletic trainers unless they meet those requirements. (Status: The bill was vetoed by Governor Brown who wrote in his veto message that the conditions set forth in the bill “impose unnecessary burdens on athletic trainers without sufficient evidence that they are really needed.”)

AB 1890 (Chau) of 2014 was identical to AB 161. (Status: The bill was vetoed by Governor Brown who wrote in his veto message that the conditions set forth in the bill “impose unnecessary burdens on athletic trainers without sufficient evidence that they are really needed.”)

AB 864 (Skinner) of 2013 would have established the licensure and regulation of athletic trainers through the creation of an Athletic Trainer Licensing Committee under the Physical Therapy Board of California. (Status: The bill was held under submission in the Assembly Committee on Appropriations.)

SB 1273 (Lowenthal) of 2012 was very similar to AB 864. (Status: The bill failed passage in this Committee.)

AB 374 (Hayashi) of 2011 would have established the Athletic Trainer Licensing Committee within the Medical Board of California to license and regulate athletic trainers commencing January 1, 2013, with a sunset date of January 1, 2018. The bill was later amended to provide title protection for athletic trainers. (Status: The bill was later amended to become a bill by Assemblymember Hill that dealt with funeral embalmers and signed by the Governor.)

AB 1647 (Hayashi) of 2010 would have established certification and training requirements for athletic trainers and prohibited individuals from calling themselves athletic trainers unless they meet those requirements. (Status: The bill was vetoed by Governor Schwarzenegger.)

SB 284 (Lowenthal) of 2007 would have enacted the Athletic Trainers Registration Act prohibiting a person from representing himself or herself as a “certified athletic trainer,” unless he or she is registered by an athletic training organization. (Status: The bill was vetoed by Governor Schwarzenegger.)

SB 1397 (Lowenthal) of 2006 would have enacted the Athletic Trainers Certification Act, prohibiting a person from representing him or herself as an athletic trainer unless he or she is certified as an athletic trainer by an athletic training organization, as defined. (Status: The bill was vetoed by Governor Schwarzenegger.)

AB 614 (Lowenthal) of 2003 would have required the DCA to submit a recommendation to the Legislature as to whether the state should license and regulate athletic trainers by January 1, 2006, if the DCA is provided with an occupational analysis of persons providing athletic trainer services by July 1, 2005. (Status: This bill was held in this Committee to allow JCBCCP to examine whether athletic trainers should be licensed as part of the "sunrise" process.)

AB 2789 (Lowenthal) of 2002 would have required the Department of Consumer Affairs to review the need for licensing of athletic trainers and undertake an occupational analysis. (Status: This bill was held under submission in the Assembly Committee on Appropriations.)

SB 2036 (McCorquodale, Chapter 908, Statutes of 1994) expanded existing law into the current Sunrise process, covering the creation of new categories of licensed professionals and the revision of the scope of practice of an existing category of licensed professional.

1. Arguments in Support. Supporters state that California consumers need to know that they will be treated by licensed professionals who are competent enough to be athletic trainers, and that they have an outlet to report questionable practice. According to supporters, California needs to regulate athletic trainers like other states in order to maintain the health of student-athletes, noting that fFifteen California universities already have accredited majors in athletic training, providing the education needed for students to practice in other states.

According to the California Medical Association, when uncertified individuals identify themselves as athletic trainers, they create a risk for athletes seeking medical treatment. The bill protects consumers by requiring athletic trainers to practice under the supervision of a physician and surgeon.

The Eric Paredes Save a Life Foundation notes that “Current law allows anyone who has lost their license or credential in another state to practice as an athletic trainer in California. Unlicensed athletic trainers may not be up to date on management of various health conditions because they are not subject to continuing education requirements.”

According to the Osteopathic Physicians and Surgeons of California, “Allowing unregistered individuals to identify themselves as athletic trainers puts consumers at risk because there is no guarantee that they have completed the proper education and training needed for their responsibilities.”

The University of Southern California writes in support, noting that “Registration with the Athletic Trainer Board is a necessary regulation to prevent mistakes made by unlicensed/non-certified athletic trainers which could lead to serious injuries or death.”

1. Arguments in Opposition. Opponents are concerned that the bill does not limit athletic training to athletes or certain settings.

The California Nurses Association is concerned that scope of practice is not well defined in the bill and that it “adds on responsibilities, such as evaluation and treatment, which go beyond what is typically required of athletic trainers.”

According to the California Physical Therapy Association (CPTA), the activities that would necessitate registration are overly broad, the bill does not outline sufficient supervision of athletic trainers, and athletic trainers would be authorized to evaluate/ treat athletes without a physician present, which goes beyond their education and training. With the amendments taken on June 20, CPTA is opposed to this bill, rather than opposed unless the bill is amended to further clarify that athletic trainers can provide services only to athletes and only pursuant to the specific injury or illness the athlete can receive athletic training services for. The CPTA notes that is had moved from a prior position of only supporting title protection with certification to support in concept a registration scheme, so long as that structure only applies to athletes in sports settings. According to CPTA, “Risk management and injury or illness prevention through pre-participation screening and evaluation, educational programs, physical conditioning and reconditioning programs, application of commercial products, use of protective equipment, promotion of healthy behaviors, and reduction of environmental risks” to register with the State of California. The expansiveness of this statement would potentially lead to personal trainers, certified massage therapists, ergonomists, and others, having to register with the Athletic Training Board. Also, by not indicating that athletic training activities will solely be performed on athletes, it makes it probable that athletic trainers will work with populations for which they have no education and training.”

CPTA states that the supervision of an athletic trainer as outlined in the bill is not sufficient and would allow an athletic trainer to work with unlimited direct access to athletes, without the athlete ever having to see a licensed healthcare practitioner, as long as there is some sort of relationship with a physician somewhere.

According to CPTA, “the argument that other states prohibit California Athletic Trainers from traveling with their sports teams unless there is a licensing scheme in this state has not, to our knowledge, affected any single California sports team. If this were the case, however, title protection and a requirement for Athletic Trainers to be certified would meet the requirements of other states, just as do the certification requirements used by many other states currently.”

The California School Employees Association would like the bill to be amended to exempt “any existing unlicensed Athletic Trainers from the licensure requirements proposed by AB 3110”. According to CSEA, Local Education Agencies (LEAs) have the authority to create positions of athletic trainers, establish minimum qualifications and assign job titles. CSEA asserts that any problems that arise involving job title, perceived duties and minimum qualifications can all be resolved locally through the bargaining process.

CrossFit, Inc. opposes this bill unless it is amended, citing language that CrossFit, Inc. believes would reduce the range of services that most CrossFit trainers already provide for their clients. Cross Fit, Inc. believes that activities of fitness trainers should be exempt from the definition of athletic training. They specifically state that the bill does not make it clear whether the outlined functions (ie. educational programs, physical conditioning, preparticipation screening, promotion of healthy behaviors, and reduction of environmental risks) are limited to athletic trainers, or whether they also apply to fitness trainers (ie. CrossFit trainers) and other professionals. “As written, Assembly Bill 3110 would limit the ability of California’s thousands of CrossFit trainers to practice CrossFit. Indeed, it would limit the ability of fitness trainers as a whole to provide services to clients that would normally be within their reasonable range of activity. But CrossFit, Inc.’s interest in this matter is not solely based on the normal range of activity for a fitness trainer - it is based on the protecting the ability of CrossFit trainers to provide services that prevent and reverse chronic disease on the individual level. Assembly Bill 3110 would hamper that ability, unless it were properly amended.” CrossFit, Inc. suggests a number of amendments to address these concerns: maintain registration and title protection for athletic trainers without regulating their practice with the words “athletic training”; specify that “Athletic training includes complementary practices performed as a coherent and unified program”; when referring to athletic training services; exempt fitness trainers from the definition of athletic training.

According to the United Nurses Associations of California/Union of Healthcare Professionals, the bill creates an overly broad scope of practice that exceeds athletic trainers’ training and expertise. Also, since there are only around 3,000 trainers in the state, creating and maintaining the board would require them to pay extremely high fees.”

1. Clarifying Changes Are Necessary to Improve Implementation of the Bill. As this bill was amended to become a registration program under a new board that authorizes certain individuals to engage in certain activities, from a prior version that established a licensure program under a committee within an existing DCA entity, technical and conforming changes are necessary to ensure that the bill makes sense. The measure still refers to the “Athletic Training Practice Act”, references “licensed” in some sections and appears to establish a new board on January 1, 2019 but delays application of the provisions related to title protection and registration until January 1, 2021. The Author should continue to work with Committee staff and interested parties to ensure that the drafting of the bill makes sense and does not include language that may lead to unintended consequences and inferences.
2. Policy Consideration: Does a New Board at DCA Make Sense? Every iteration of athletic trainer regulation in California beyond title protection and certification by BOC has struggled with a determination as to where in state government, regulation should be administered. Prior bills proposed a committee under the Medical Board and this bill previously established a committee under the Board of Occupational Therapy. This bill now creates a new board within the DCA, which will be tasked with registering qualified athletic trainers, maintaining a public website that allows individuals to determine if an athletic trainer is registered and referring complaints to the appropriate entity when necessary.

DCA may not currently be in a position to assume the management of another board. DCA provides general oversight, legal, administrative and enforcement support to boards, and is 99 percent funded by the licensing fees collected by these boards in the form of “pro rata.” This Committee has raised substantial questions about how DCA manages those funds and the value of DCA services provided to boards. At the heart of this issue has been the reliance of boards with small licensing populations (the new board proposed by this bill would likely register about 3,300 individuals) on DCA services but the significant charges to larger boards with much larger licensing populations and staff, since pro rata is apportioned primarily based on the number of authorized staff at each board, regardless of how much of DCA’s services the boards say they use. Based on DCA’s own figures, actual pro rata costs for every board have increased an average of 112 percent since FY 2012-2013.

A number of DCA entities have programs, committees or other bodies tasked with regulatory activity within those entities. For example, the California Architects Board oversees the Landscape Architects Technical Committee, the Naturopathic Medicine Committee is established within the Osteopathic Medical Board of California and the MBC administers a Polysomnographic Program which registers individuals involved in the treatment, management, diagnostic testing, control, education and care of patients with sleep and wake disorders and MBC also registers Research Psychoanalysts, individuals who practice psychoanalysis for fees for no more than one third of the individual’s total professional time (which includes time spent in practice, teaching, training or research).

Given the impact that registration fees could have on athletic trainers, and potential for fees to have to take into account functions of this new board, including Pro Rata charges, it may be more appropriate to create a program or committee under an existing entity within the DCA.

SUPPORT AND OPPOSITION:

Support:

American Medical Society of Sports Medicine

American Orthopaedic Society for Sports Medicine

Atvantage

Association of Independent California Colleges and Universities

Board of Certification

California Association for Health, Physical Education, Recreation, and Dance

California Athletic Trainers Association

California Interscholastic Federation

California Interscholastic Federation (CIF), Southern Section

California Medical Association

Commission on Accreditation of Athletic Training Education

Eric Paredes Save a Life Foundation

Meticulous Medical, Inc.

National Athletic Trainers’ Association

National Collegiate Athletic Association

Onsite Innovations

Osteopathic Physicians and Surgeons of California

Pivot Physical Therapy

Sacramento Kings

Southern California Intercollegiate Athletic Conference

University of California, San Francisco Playsafe Sports Medicine

University of California, Davis

University of Redlands

University of Southern California

4 individuals

Opposition:

American Occupational Therapy Association

California Nurses Association

California Physical Therapy Association

California School Employees Association

CrossFit, Inc.

United Nurses Associations of California/Union of Healthcare Professionals

29 individuals

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 3110

Author:(Mullin)

As Amended Ver:

Majority vote

SUMMARY: Would establish the Athletic Training Practice Act (Act) for the purpose of registering persons engaged in the profession of Athletic Trainer. Specifically, this bill:

1. Establishes the Athletic Training Practice Act which is a comprehensive scheme for the regulation and registration of the profession of athletic training.
2. Establishes, until January 1, 2025, the Athletic Training Board within the Department of Consumer Affairs, as specified, and empowers the Board to adopt, repeal, and amend regulations as may be necessary to administer and enforce this chapter.
3. Specifies the requirements for registration and the use of titles, requiring the Board to issue an athletic training registration to an applicant who meets all of the prescribed requirements at the time of application.
4. Specifies that all registrations are valid for two years and specifies registration renewal requirements.
5. Authorizes the Board to deny, suspend, or revoke a registration for specified reasons, including relevant final disciplinary actions by other agencies and criminal convictions.
6. Prohibits the unregistered practice of athletic training, including advertising or representing the ability to practice or provide athletic training services unless registered under the Athletic Training Practice Act.
7. Establishes, on January 1, 2021, title protection for athletic trainers, prohibiting the use of the title "athletic trainer," "licensed athletic trainer," "certified athletic trainer," "athletic trainer certified," "a.t.," "a.t.l.," "c.a.t.," "a.t.c.," or any other variation of these terms, or any other similar terms indicating that the person is an athletic trainer, unless registered under the Athletic Training Practice Act.
8. Establishes a temporary "grandfathering" exemption period, exempting from the title protection provisions a person who is covered under a collective bargaining agreement that would be impacted by the title protection provisions until the parties to the agreement are able to renegotiate the agreement.
9. Defines, for the purposes of the Athletic Training Practice Act, the following:
   1. "Athletic trainer" means a person who practices athletic training and who meets the requirements of this chapter.
   2. "Board" means the Athletic Training Board.
   3. "Registrant" means a person who practices athletic training and is registered pursuant to this chapter.
   4. "Director" means the Director of Consumer Affairs.
10. Defines "unprofessional conduct," and contains an extensive list of offenses, including:
    1. Incompetence, negligence, or gross negligence in carrying out usual athletic trainer functions.
    2. Repeated similar negligent acts in carrying out usual athletic trainer functions.
    3. A conviction of practicing medicine without a license in violation of Chapter 5 (commencing with Section 2000), in which event a certified copy of the record of conviction shall be conclusive evidence thereof.
    4. The use of advertising relating to athletic training which violate false advertising requirements under the Business and Professions Code (BPC) Section 17500.
    5. Denial of licensure, revocation, suspension, restriction, or any other disciplinary action against a licensee by another state or territory of the United States, by any other government agency, or by another California healing arts licensing board. A certified copy of the decision, order, or judgment shall be conclusive evidence thereof.
    6. Committing any act punishable as a sexually related crime, if that act is substantially related to the qualifications, functions, or duties of a licensee, in which event a certified copy of the record of conviction shall be conclusive evidence thereof.
    7. Using excessive force upon or mistreating or abusing any patient. For purposes of this subdivision, "excessive force" means force clearly in excess of that which would normally be applied in similar clinical circumstances.
    8. As a registrant, using to an extent or in a manner dangerous or injurious to himself or herself, to any other person, or to the public, or that impairs his or her ability to conduct with safety to the public the practice authorized by his or her registration, of any of the following:
       1. A controlled substance as defined in the Health and Safety Code, Division 10 (commencing with Section 11000).
       2. A dangerous drug or dangerous device as defined in Section 4022.
       3. Alcoholic beverages.
    9. As a registrant, falsifying, or making grossly incorrect, grossly inconsistent, or unintelligible entries in any patient record, or any other record.
11. Defines the "practice of athletic training" to include all of the following:
    1. Risk management and injury or illness prevention through preparticipation screening and evaluation, educational programs, physical conditioning and reconditioning programs, application of commercial products, use of protective equipment, promotion of healthy behaviors, and reduction of environmental risks.
    2. The clinical evaluation and assessment of an injury sustained or exacerbated while participating in athletic activity or a condition exacerbated while participating in athletic activity, for which the athletic trainer has had formal training during his or her professional education program or advanced postprofessional study and falls within the scope of practice of athletic training, by obtaining a history of the injury or condition, inspection and palpation of the injured part and associated structures, and performance of specific testing techniques related to stability and function to determine the extent of an injury.
    3. The immediate care of an injury sustained or exacerbated while participating in athletic activity or a condition exacerbated while participating in athletic activity, for which the athletic trainer has had formal training during his or her professional education program or advanced postprofessional study and falls within the scope of practice of athletic training, by the application of first-aid and emergency procedures, techniques, and equipment for nonlife-threatening or life-threatening injuries or conditions.
    4. The rehabilitation and reconditioning from an injury sustained or exacerbated while participating in athletic activity and reconditioning from a condition, for which the athletic trainer has had formal training during his or her professional education program or advanced postprofessional study and falls within the scope of practice of athletic training, including, but not limited to, the application of physical agents and modalities, therapeutic exercise, manual therapy and massage, standard reassessment techniques and procedures, commercial products and durable medical equipment, and educational programs, in accordance with guidelines established with a healing arts licensee.
    5. "Athletic activity" means an activity involving an athlete that requires physical strength, range-of-motion, flexibility, body awareness and control, speed, stamina, or agility, as specified.
    6. "Athlete" means a person who participates in an athletic activity.
12. Excludes from practice of athletic training the following:
    1. Grade 5 spinal manipulations.
    2. The diagnosis of disease.
    3. The practice of medicine.
13. Provides that a registrant who meets the requirements of this chapter and is certified as an athletic trainer shall only render athletic training services pursuant to a verbal or written order by, and under the supervision of, a physician and surgeon licensed by the Medical Board of California or an osteopathic physician and surgeon licensed by the Osteopathic Medical Board of California.
14. States, for purposes of this section, "supervision" means services are only provided pursuant to an athletic training treatment plan or protocol, as specified.
15. Exempts from the requirements of the Athletic Training Practice Act the following:
    1. An athletic trainer licensed, certified, or registered in another state or country who is in California temporarily, while traveling with a team or organization, to engage in the practice of athletic training for, among other things, an athletic or sporting event and only when this athletic trainer limits his or her scope of practice to the members of the team or organization or during an emergency.
    2. An athletic trainer licensed, certified, or registered in another state or country who is invited by a sponsoring organization, such as the United States Olympic Committee, to temporarily provide athletic training services under his or her state’s scope of practice for athletic training.
    3. A student enrolled in an athletic training education program, while participating in educational activities during the course of his or her educational rotations under the supervision and guidance of an athletic trainer registered under this chapter, a physician and surgeon licensed by the Medical Board of California, an osteopathic physician and surgeon licensed by the Osteopathic Medical Board of California, or other any licensed health care provider, when the student’s title clearly indicates student status.
    4. A member or employee of the United States Armed Forces, licensed, certified, or registered in another state as an athletic trainer, as part of his or her temporary federal deployment or employment in California for a limited time.
    5. Any other healing arts licensee.
16. Establishes the Athletic Trainers' Fund in the State Treasury and specifies the following:
    1. All fees collected pursuant to this chapter shall be paid into the fund.
    2. Moneys in the fund shall be available to the Board, upon appropriation by the Legislature, for expenditure by the Board to defray its expenses for administering this chapter.
17. Establishes fees, as provided.
18. Authorizes the Director to seek donations or, if no private funds are available, seek a loan from existing state funds to cover the initial costs of the chapter.
19. Makes various Legislative findings and declarations.

FISCAL EFFECT: According to the Assembly Appropriations Committee analysis there are:

1. Costs of approximately $500,000 for 2019 and 2020 to establish the board and processes, $1.3 million in 2020-21, and approximately $1.2 million ongoing to the (Athletic Trainer's Fund, which would need a general fund (GF) or special fund loan for start-up costs if private funds were not available.)
2. One-time costs to the Department of Justice exceeding $100,000 for background checks (Fingerprint Fees Account).

COMMENTS: According to the author, "Athletic trainers are health care professionals who specialize in the prevention, recognition, treatment, and rehabilitation of injuries and conditions. California is the only state that does not regulate the profession of athletic training. Approximately 20% of individuals calling themselves athletic trainers in high schools have not completed a university level accredited athletic training education program or passed the national standard BOC athletic training certification examination. This puts student athletes at risk, since the mistakes of unlicensed athletic trainers can lead to serious, even life threatening issues. Further, in a growing number of states, including Utah, Texas, Hawaii, and Massachusetts, it is illegal for unregulated athletic trainers to practice in those states for any period of time. Consequently, when California athletic trainers travel to these states with their teams, they risk violating those state laws, since athletic trainers are not regulated in California putting themselves and their employers at risk."

The Assembly Business & Professions Committee analysis of April 11, 2018 notes, "The Legislature often receives requests for new or expanded occupational regulation. The regulatory proposals are generally intended to assure the competence of specified practitioners in different occupations. The requests have resulted in a proliferation of licensure and certification programs, which are often met with mixed reviews. Proponents argue that licensing benefits the public by assuring competence and an avenue for consumer redress. Critics disturbed by increased governmental intervention in the marketplace have cited shortages of practitioners and increased costs of service as indicators that regulation benefits a profession more than it benefits the public."

Please see the policy committee analysis for a full discussion of the measure.

Analysis Prepared by: Dana Mitchell / A.,E.,S.,T., & I.M. / (916) 319-3450 FN: 0003274

Date of Hearing: May 16, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 3110

Author:(Mullin) – As Amended Ver:May 9, 2018

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill establishes the Athletic Training Practice Act, to be overseen by the newly created Athletic Training Board (ATB) within the Department of Consumer Affairs. Specifically, this bill:

1. Requires anyone in the state practicing athletic training, as defined, or using the title "athletic trainer" (AT) or a similar title, to register with the ATB.
2. Requires registrants to have proof of private certification, as specified.
3. Requires ATs to work under the supervision of a doctor.
4. Requires a two-year renewal and background checks for ATs, and specifies grounds for rejection.
5. Requires the ATB to refer complaints to appropriate licensing or certification entities.
6. Requires the ATB to track data related to complaints, registrants, consumer harm, and other information, and report to the Legislature by July 1, 2021.
7. Defines unprofessional conduct.
8. Establishes the Athletic Trainer's Fund to deposit application fees, initial registration fees, renewal fees, and other fees, which the ATB is required to establish.
9. Allows the DCA to seek funds from the California Athletic Trainers Association or any private individual or entity for the initial costs of implementing the bill.

FISCAL EFFECT:

1. $1.6 million in 2019-20, $1.3 million in 2020-21, and $1.2 million ongoing to the Athletic Trainer's Fund, which would need a GF or special fund loan for start-up costs if private funds were not available.
2. One-time costs to the Department of Justice exceeding $100,000 for background checks (Fingerprint Fees Account).

COMMENTS:

1. Purpose. This bill is intended to establish state oversight for athletic trainers to protect consumers from harm associated with unregulated practice.
2. Background. According to the Occupational Outlook Handbook published by the federal Bureau of Labor Statistics, ATs specialize in preventing, diagnosing, and treating muscle and bone injuries and illnesses. Nearly all states require ATs to have a license or certification. Requirements vary by state. According to the California Athletic Trainers Association (CATA), there are 3,100 certified ATs in California and a number who are uncertified. Many ATs work in educational settings, including colleges, universities, elementary schools, and secondary schools. Others work in hospitals, fitness centers, or physicians’ offices, or for professional sports teams.

The Legislature uses a "sunrise review" process to assess requests for new state licensure, certification, and registration programs. This process weights potential consumer protection benefits with potential harms from government regulation, such as increased cost and restricted employment opportunities. According to the sunrise review report submitted by the author, the public is at risk of harm without state regulation. CATA asserts there are documented cases of harm to athletes under the care of unqualified individuals.

According to CATA, education for athletic training is standardized and is accredited by a national accreditation agency, the Commission on Accreditation of Athletic Training Education. This bill requires registrants to possess a private certification that encompasses this training.

1. Support and Opposition. CATA, sports medicine schools and associations, the California Medical Association, and others write in support that recognizing ATs through state regulation is critical to consumer protection and allows ATs to operate in a legal, professional manner. Numerous allied health professional organizations oppose this bill, including those comprised of nurses, physician assistants, physical therapists, and occupational therapists. These professionals generally object to the establishment of a new scope of practice, believe the defined scope is overly expansive and overlaps with that of other professionals, and believe a new regulatory program is unnecessary.
2. Prior Legislation. A large number of bills over the past 15 years has addressed the issue of state regulation of athletic trainers, including bills establishing licensure, certification, and title protection, as well as bills that required the issue be studied. Five have been vetoed, while another six did not pass the Legislature. The current governor has vetoed two bills, in 2014 and 2015, that established title protection for ATs, on concern the bills posed "unnecessary burdens on athletic trainers without sufficient evidence they are needed." This bill imposes a stricter standard than did those bills, and it is unclear whether this bill and related information submitted by the author would address the governor's veto message.
3. Staff Comments.
   1. Technical cleanup is necessary in Section 2967.8, where language refers to a license instead of a registration.
   2. This bill specifies consumer complaints must be referred to appropriate licensing or certification entities. The author may wish to consider requiring complaints appropriate to be referred to law enforcement to be referred to such.
   3. The author may wish to consider requiring some type of outreach to notify persons currently working as trainers that registration is necessary.
   4. This bill was amended to change the originally proposed licensure structure to a registration in order to allow the state to collect data to see if more stringent regulation is required. For persons who may be working as trainers who have not obtained formal certification required for registration, the author may wish to consider whether some flexibility is warranted to allow them to obtain the necessary certification prior to being shut out of a job. This could be effectuated by requiring registration and collecting information about certification status, but removing the certification requirement. Alternatively, requirement that a registrant be certified could be delayed until a later date.
   5. This bill specifies private funds may be accepted to pay startup costs. However, the bill is effective regardless of whether private funds are available. The bill should specify that if GF or special fund loan is necessary, that the startup costs must be repaid with fee revenue.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: April 24, 2018

ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS

Evan Low, Chair

ABPCA Bill Id:AB 3110

Author:(Mullin) – As Amended Ver:April 11, 2018

NOTE: This bill is double referred, having been previously heard by the Assembly Committee on Arts, Entertainment, Sports, Tourism, and Internet Media, on April 18, 2017 and approved on a 5-0 vote.

SUBJECT: Athletic trainers.

SUMMARY: Establishes, until January 1, 2026, the Athletic Training Practice Act and the Athletic Trainer Licensing Committee under the California Board of Occupational Therapy (CBOT) for the licensure and regulation of athletic trainers (ATs).

EXISTING LAW:

1. Provides for the regulation and licensure of the practice of medicine under the Medical Practice Act and establishes the Medical Board of California to implement and enforce the Act. (Business and Professions Code (BPC) §§ 2000-2028.5)
2. Prohibits any person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing a valid, unrevoked, or unsuspended certificate as provided under the Medical Practice Act or without being authorized to perform the act pursuant to a certificate obtained in accordance with some other provision of law. (BPC § 2052)
3. Establishes requirements and procedures for legislative oversight of state board formation and licensed professional practice. (Government Code (GOV) §§ 9148-9148.8)
4. Requires, prior to consideration by the Legislature of legislation creating a new state board or legislation creating a new category of licensed professional, that the author or sponsor of the legislation develop a plan for the establishment and operation of the proposed state board or new category of licensed professional. (GOV § 9148.4)
5. The plan must include, but not be limited to, all of the following:
   1. A description of the problem that the creation of the specific state board or new category of licensed professional would address, including the specific evidence of need for the state to address the problem. (GOV § 9148.4 (a))
   2. The reasons why this proposed state board or new category of licensed professional was selected to address this problem, including the full range of alternatives considered and the reason why each of these alternatives was not selected. (GOV § 9148.4(b))
   3. Alternatives that shall be considered include, but are not limited to, the following:
      1. No action taken to establish a state board or create a new category of licensed professional. (GOV § 9148.4(b)(1))
      2. The use of a current state board or agency or the existence of a current category of licensed professional to address the problem, including any necessary changes to the mandate or composition of the existing state board or agency or current category of licensed professional. (GOV § 9148.4(b)(2))
      3. The various levels of regulation or administration available to address the problem. (GOV § 9148.4(b)(3))
      4. Addressing the problem by federal or local agencies. (GOV § 9148.4(b)(4))
   4. The specific public benefit or harm that would result from the establishment of the proposed state board or new category of licensed professional, the specific manner in which the proposed state board or new category of licensed professional would achieve this benefit, and the specific standards of performance which shall be used in reviewing the subsequent operation of the board or category of licensed professional. (GOV § 9148.4(c))
   5. The specific source or sources of revenue and funding to be utilized by the proposed state board or new category of licensed professional in achieving its mandate. (GOV § 9148.4(d))
   6. The necessary data and other information required in this section shall be provided to the Legislature with the initial legislation and forwarded to the policy committees in which the bill will be heard. (GOV § 9148.4(e))
6. Authorizes the appropriate policy committee of the Legislature to evaluate the plan prepared in connection with a legislative proposal to create a new state board and provides that, if the appropriate policy committee does not evaluate a plan, then the Joint Sunset Review Committee shall evaluate the plan and provide recommendations to the Legislature. (GOV § 9148.8)
7. Establishes the Department of Consumer Affairs (DCA) within the Business, Consumer Services, and Housing Agency. (BPC § 100)
8. Provides for the licensure and regulation of various professions and vocations by boards, bureaus, and other entities within the DCA. (BPC §§ 22, 100-144.5)
9. Specifies that the DCA is under the control of a civil executive officer who is known as the Director of Consumer Affairs and specifies the duties and authority of the Director. (BPC §§ 150-166)
10. Authorizes the DCA to levy a charge for estimated administrative expenses, not to exceed the available balance in any appropriation for any one fiscal year, in advance on a pro rata share basis against any of the boards, bureaus, commissions, divisions, and agencies, at the discretion of the director and with the approval of the Department of Finance. (BPC § 201)
11. Establishes the Bagley-Keene Open Meetings Act, which covers all state boards and commissions and requires them to publicly notice their meetings, prepare agendas, accept public testimony, and conduct their meetings in public unless specifically authorized to meet in closed session. (GOV §§ 11120-11132)
12. Provides for the licensure and regulation of the practice of occupational therapy, as defined, by the CBOT within the DCA until January 1, 2021, and provides that the repeal of these provisions subjects the CBOT to review by the appropriate policy committees of the Legislature. (BPC § 3716)

THIS BILL:

1. Establishes, until January 1, 2026, the Athletic Training Practice Act.
2. Declares the following Legislative findings and intent:
   1. California is one of only two states that does not currently regulate the practice of athletic training. This lack of regulation creates the risk that individuals who have lost or are unable to obtain licensure in another state will come to California to practice, thereby putting the public in danger and degrading the standards of the profession as a whole.
   2. There is a pressing and immediate need to regulate the profession of athletic training in order to protect the public health, safety, and welfare. This need is particularly important because athletic trainers often work with school age children.
   3. There is also a pressing and immediate need to regulate the profession of athletic training because the absence of regulation puts California businesses, colleges, universities, and other organizations at risk of liability solely because of the unlicensed status of athletic trainers in the state.
3. Defines, for the purposes of the Athletic Training Practice Act, the following:
   1. “Athletic trainer” means a person who meets the requirements of this chapter, is licensed by the committee, and practices under the direction of a licensed physician or surgeon.
   2. “Board” means the California Board of Occupational Therapy.
   3. “Committee” means the Athletic Trainer Licensing Committee.
   4. “Director” means the Director of Consumer Affairs.
4. Establishes the Athletic Trainer Licensing Committee within the CBOT and specifies the following structure, requirements, and appointments processes:
   1. The committee shall consist of seven members.
   2. The seven committee members shall include the following:
      1. Three licensed athletic trainers, and specifies procedures for selecting the athletic trainer members prior to the implementation of the athletic training licensing program.
      2. Two public members.
      3. One physician and surgeon licensed by the Medical Board of California or one osteopathic physician and surgeon licensed by the Osteopathic Medical Board of California.
      4. One occupational therapist licensed by the CBOT.
   3. Specifies that, subject to confirmation by the Senate, the Governor appoints two of the licensed athletic trainer members, the public member, the physician and surgeon or osteopathic physician and surgeon member, and the licensed occupational therapist. The Senate Committee on Rules and the Speaker of the Assembly shall each appoint a licensed athletic trainer.
   4. All appointments are for a term of four years and shall expire on June 30 of the year in which the term expires, as specified.
   5. Each member of the committee shall receive per diem and expenses, consistent with other DCA boards.
5. Specifies the responsibilities of Athletic Trainer Licensing Committee as follows:
   1. Requires the Committee to adopt, repeal, and amend regulations necessary to administer and enforce the Athletic Training Practice Act.
   2. Authorizes the Committee, before adopting regulations, to consult the professional standards issued by the National Athletic Trainers Association, the Board of Certification, Inc., the Commission on Accreditation of Athletic Training Education, or any other nationally recognized professional athletic training organization.
   3. Requires the Committee, before issuing a license, to investigate each applicant to determine whether the applicant meets the qualifications required by the Athletic Training Practice Act.
   4. Requires the Committee to give protection of the public the highest priority in exercising its licensing, regulatory, and disciplinary functions, and declares that, whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.
   5. Requires the Committee to establish license application and renewal fees in an amount sufficient to cover the reasonable regulatory costs of administering the Athletic Training Practice Act.
6. Specifies the requirements for licensure, requiring the Committee to issue an athletic training license to an applicant who meets all of the following requirements at the time of application:
   1. The applicant is over the age of 18.
   2. The applicant is not addicted to alcohol or any controlled substance.
   3. The applicant has not committed acts or crimes constituting grounds for denial of a license as specified under BPC § 480.
   4. The applicant has submitted an application developed by the Committee that includes evidence that the applicant has graduated from a professional degree program in athletic training accredited by the Commission on Accreditation of Athletic Training Education, or its predecessors or successors, and approved by the Committee, at an accredited postsecondary institution or institutions approved by the Committee.
   5. The applicant has passed an athletic training certification examination offered by the Board of Certification, Inc., its predecessors or successors, or another nationally accredited athletic trainer certification agency approved and recognized by the Committee.
   6. The applicant has passed a criminal background check.
   7. The applicant has paid the application fee established by the Committee.
7. Establishes an alternate licensing pathway for applicants who received training in athletic training "via internship" to apply for licensure and requires the Committee to issue an athletic training license if the internship pathway applicant meets the following requirements at the time of application:
   1. The internship pathway applicant is over the age of 18.
   2. The internship pathway applicant is not addicted to alcohol or any controlled substance.
   3. The internship pathway applicant has not committed acts or crimes constituting grounds for denial of a license as specified under BPC § 480.
   4. The internship pathway applicant furnishes evidence satisfactory to the Committee of completion of a bachelor’s degree program at an accredited postsecondary institution that includes instruction in basic sciences related to, and on the practice of, athletic training.
   5. The internship pathway applicant has passed an athletic training certification examination offered by the Board of Certification, Inc., its predecessors or successors, or another nationally accredited athletic trainer certification agency approved and recognized by the Committee.
   6. The internship pathway applicant has passed a criminal background check.
   7. The internship pathway applicant has paid the application fee established by the Committee.
8. Specifies that all licenses are valid for two years and specifies the following license renewal requirements:
   1. Licensees must pay the renewal fee established by the Committee.
   2. Licensees must submit proof both all of the following:
      1. Satisfactory completion of continuing education, as determined by the Committee.
      2. Current athletic training certification from a Committee-approved certification body, as specified. 
9. Authorizes the Committee to deny a license or discipline a licensee for any of the following reasons:
   1. The applicant or licensee does not meet the requirements of the Athletic Training Practice Act.
   2. The applicant or licensee has had an athletic training license, certification, or registration revoked or suspended by an accredited organization, state, or territory.
   3. The applicant or licensee has been convicted of a felony or any other crime that substantially relates to the functions or duties of an athletic trainer.
   4. The applicant or licensee has committed unprofessional conduct, as defined under the Athletic Training Practice Act.
10. Authorizes the Committee to order disciplinary actions regarding an athletic training license after a hearing for unprofessional conduct, as follows:
    1. Place the license on probation with terms and conditions.
    2. Suspend the license and the ability to practice athletic training for a period not to exceed one year.
    3. Revoke the license.
    4. Suspend or stay the disciplinary order, or portions of it, with or without conditions.
    5. Issue an initial probationary license, with specific terms and conditions, to an applicant who has the Athletic Training Practice Act or the regulations adopted pursuant to it, but who has met all other requirements for licensure.
    6. Take any other action as the Committee, in its discretion, deems proper to protect the public health and safety.
11. Specifies that, if a license is suspended, the holder may not practice as an athletic trainer during the term of suspension. Upon the expiration of the term of suspension, the license will be reinstated and the holder may resume practice under any remaining terms of the discipline, unless the Committee determines that the holder of the license practiced in this state during the term of suspension, in which case the Committee may, after a hearing on the issue, revoke the license.
12. Specifies that the Committee retains jurisdiction to proceed with any investigation, action, or disciplinary proceeding against a license, or to render a decision suspending or revoking a license, regardless of the expiration, lapse, or suspension of the license by operation of law, by order or decision of the Committee or a court of law, or by the voluntary surrender of a license by the licensee.
13. Establishes procedures for the reinstatement of a license that has been revoked, suspended, or placed on probation as follows:
    1. Authorizes a disciplined licensee to petition the Committee for reinstatement or modification of a penalty, including reduction or termination of probation, after a period not less than the applicable minimum period has elapsed from either the effective date of the decision ordering that disciplinary action, or, if the order of the Committee or any portion of it was stayed, from the date the disciplinary action was actually implemented in its entirety.
    2. Specifies the following minimum required periods before a licensee may petition for reinstatement:
       1. For a license that was revoked for any reason other than mental or physical illness, at least three years.
       2. For early termination of probation scheduled for three or more years, at least two years.
       3. For modification of a penalty, reinstatement of a license revoked for mental or physical illness, or termination of probation scheduled for less than three years, at least one year.
       4. A lesser period of time, as determined by the Committee, provided that the period is not less than one year.
    3. Requires a petition for reinstatement to contain any information required by the Committee, which may include a current set of fingerprints accompanied by the fingerprinting fee.
    4. Requires the Committee to give notice to the Attorney General of the filing of a petition for reinstatement. 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 committee. The petitioner shall at all times have the burden of proof to establish by clear and convincing evidence that he or she is entitled to the relief sought in the petition.
    5. Requires the Committee itself to hear a petition for reinstatement and for an administrative law judge to prepare a written decision setting forth the reasons supporting the decision.
    6. Authorizes the Committee to grant a petition, deny a petition, or impose on a petition any terms and conditions that the Committee reasonably deems appropriate as a condition of reinstatement or reduction of penalty.
    7. Requires the Committee to refuse to consider a petition for reinstatement 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 subject to an order of registration pursuant to Section 290 of the Penal Code.
    8. Prohibits the consideration of a petition for reinstatement while there is an accusation or petition to revoke probation pending against the petitioner.
14. Defines "unprofessional conduct" to include:
    1. Incompetence, negligence, or gross negligence in carrying out usual athletic trainer functions.
    2. Repeated similar negligent acts in carrying out usual athletic trainer functions.
    3. A conviction of practicing medicine without a license in violation of Chapter 5 (commencing with Section 2000), in which event a certified copy of the record of conviction shall be conclusive evidence thereof.
    4. The use of advertising relating to athletic training which violate false advertising requirements under BPC § 17500.
    5. Denial of licensure, revocation, suspension, restriction, or any other disciplinary action against a licensee by another state or territory of the United States, by any other government agency, or by another California healing arts licensing board. A certified copy of the decision, order, or judgment shall be conclusive evidence thereof.
    6. Procuring a license by fraud, misrepresentation, or mistake.
    7. Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provision or term of this chapter or any regulation adopted pursuant to this chapter.
    8. Making or giving any false statement or information in connection with the application for issuance or renewal of a license.
    9. Conviction of a crime or of any offense substantially related to the qualifications, functions, or duties of a licensee, in which event the record of the conviction shall be conclusive evidence thereof.
    10. Impersonating an applicant or acting as proxy for an applicant in any examination required under this chapter for the issuance of a license.
    11. Impersonating a licensee, or permitting or allowing another unlicensed person to use a license.
    12. Committing any fraudulent, dishonest, or corrupt act that is substantially related to the qualifications, functions, or duties of a licensee.
    13. Committing any act punishable as a sexually related crime, if that act is substantially related to the qualifications, functions, or duties of a licensee, in which event a certified copy of the record of conviction shall be conclusive evidence thereof.
    14. Using excessive force upon or mistreating or abusing any patient. For purposes of this subdivision, “excessive force” means force clearly in excess of that which would normally be applied in similar clinical circumstances.
    15. Falsifying or making grossly incorrect, grossly inconsistent, or unintelligible entries in a patient or hospital record or any other record.
    16. Changing the prescription of a physician and surgeon or falsifying verbal or written orders for treatment or a diagnostic regime received, whether or not that action resulted in actual patient harm.
    17. Failing to maintain confidentiality of patient medical information, except as disclosure is otherwise permitted or required by law.
    18. Delegating to an unlicensed employee or person a service that requires the knowledge, skills, abilities, or judgment of a licensee or registrant.
    19. Committing any act that would be grounds for denial of a license or registration under Section 480.
    20. Except for good cause, the knowing failure to protect patients by failing to follow infection control guidelines of the committee, thereby risking transmission of infectious diseases from licensee to patient, from patient to patient, or from patient to licensee.
    21. As a licensee, obtaining or possessing in violation of law, or prescribing, or, except as directed by a licensed physician and surgeon, dentist, optometrist, or podiatrist, administering to himself or herself, or furnishing or administering to another, any controlled substance as defined in Division 10 (commencing with Section 11000) of the Health and Safety Code or any dangerous drug or dangerous device as defined in Section 4022.
    22. As a licensee, using to an extent or in a manner dangerous or injurious to himself or herself, to any other person, or to the public, or that impairs his or her ability to conduct with safety to the public the practice authorized by his or her license, of any of the following:
        1. A controlled substance as defined in Division 10 (commencing with Section 11000) of the Health and Safety Code.
        2. A dangerous drug or dangerous device as defined in Section 4022.
        3. Alcoholic beverages.
    23. As a licensee, being convicted of a criminal offense involving the prescription, consumption, or self-administration of any of the specified controlled substances, or the possession of, or falsification of a record pertaining to, the specified controlled substances, in which event the record of the conviction is conclusive evidence thereof.
    24. As a licensee, being committed or confined by a court of competent jurisdiction for intemperate use of any of the specified controlled substances, in which event the court order of commitment or confinement is prima facie evidence of the commitment or confinement.
    25. As a licensee, falsifying, or making grossly incorrect, grossly inconsistent, or unintelligible entries in any patient record, or any other record.
15. Prohibits the unlicensed practice of athletic training, including advertising or representing the ability to practice or provide athletic training services unless licensed under the Athletic Training Practice Act.
16. Establishes title protection for athletic trainers, prohibiting the use of the title “athletic trainer,” “licensed athletic trainer,” “certified athletic trainer,” “athletic trainer certified,” “a.t.,” “a.t.l.,” “c.a.t.,” “a.t.c.,” or any other variation of these terms, or any other similar terms indicating that the person is an athletic trainer, unless licensed under the Athletic Training Practice Act.
17. Establishes a temporary "grandfathering" exemption period, authorizing a person who practiced athletic training in California for a period of 20 consecutive years prior to July 1, 2019, and is not eligible on that date for an athletic training license to engage in the practice of athletic training and use the title “athletic trainer” without being licensed by the committee, upon registration with the committee. However, on and after January 1, 2021, a person shall not engage in the practice of athletic training or use the title “athletic trainer” unless he or she is licensed by the committee pursuant to the Athletic Training Practice Act.
18. Defines the "practice of athletic training" to include all of the following:
    1. Risk management and injury or illness prevention through preparticipation screening and evaluation, educational programs, physical conditioning and reconditioning programs, application of commercial products, use of protective equipment, promotion of healthy behaviors, and reduction of environmental risks.
    2. The clinical evaluation and assessment of an injury sustained or exacerbated while participating in athletic activity or a condition exacerbated while participating in athletic activity, for which the athletic trainer has had formal training during his or her professional education program or advanced postprofessional study and falls within the scope of practice of athletic training, by obtaining a history of the injury or condition, inspection and palpation of the injured part and associated structures, and performance of specific testing techniques related to stability and function to determine the extent of an injury.
    3. The immediate care of an injury sustained or exacerbated while participating in athletic activity or a condition exacerbated while participating in athletic activity, for which the athletic trainer has had formal training during his or her professional education program or advanced postprofessional study and falls within the scope of practice of athletic training, by the application of first-aid and emergency procedures, techniques, and equipment for nonlife-threatening or life-threatening injuries or conditions.
    4. The rehabilitation and reconditioning from an injury sustained or exacerbated while participating in athletic activity and reconditioning from a condition, for which the athletic trainer has had formal training during his or her professional education program or advanced postprofessional study and falls within the scope of practice of athletic training, including, but not limited to, the application of physical agents and modalities, therapeutic exercise, manual therapy and massage, standard reassessment techniques and procedures, commercial products and durable medical equipment, and educational programs, in accordance with guidelines established with a healing arts licensee.
19. Specifies, for purposes of the "practice of athletic training," the following:
    1. Excludes from practice of athletic training the following:
       1. Grade 5 spinal manipulations.
       2. The diagnosis of disease.
       3. The practice of medicine, including medical services provided by physician assistants.
       4. The practice of occupational therapy, as defined.
       5. The practice of physical therapy, as defined.
       6. The practice of nursing, as defined.
       7. The practice of chiropractic, as defined.
    2. Requires an athletic trainer to refer a patient to the appropriate licensed health care provider when the management of the injury or condition does not fall within the practice of athletic training.
    3. Prohibits an athletic trainer from providing, offering to provide, or representing that the athletic trainer is qualified to provide any treatment that the athletic trainer is not qualified to perform by the athletic trainer's professional education or advanced postprofessional study or does not fall within the scope of practice of athletic training.
    4. Defines “athletic activity” as participation in activity requiring physical strength, range-of-motion, flexibility, body awareness and control, speed, stamina, or agility.
    5. Requires an athletic trainer to render treatment within the athletic trainer's scope of practice, under the direction of a physician and surgeon licensed by the Medical Board of California or an osteopathic physician and surgeon licensed by the Osteopathic Medical Board of California.
    6. Defines "direction" as verbal or written order by the directing physician and surgeon or osteopathic physician and surgeon or by athletic training treatment plans or protocols established by the physician and surgeon or osteopathic physician and surgeon.
    7. Defines “under the direction of a physician and surgeon” to mean that the physician and surgeon is available to the athletic trainer in person or via telehealth, as defined.
    8. Authorizes the Committee, notwithstanding any other law and consistent with the Athletic Training Practice Act, to establish other alternative mechanisms for the adequate direction of an athletic trainer.
20. Exempts from the requirements of the Athletic Training Practice Act the following:
    1. An athletic trainer licensed, certified, or registered in another state or country who is in California temporarily, while traveling with a team or organization, to engage in the practice of athletic training for, among other things, an athletic or sporting event and only when this athletic trainer limits his or her scope of practice to the members of the team or organization or during an emergency.
    2. An athletic trainer licensed, certified, or registered in another state or country who is invited by a sponsoring organization, such as the United States Olympic Committee, to temporarily provide athletic training services under his or her state’s scope of practice for athletic training.
    3. A student enrolled in an athletic training education program, while participating in educational activities during the course of his or her educational rotations under the supervision and guidance of an athletic trainer licensed under this chapter, a physician and surgeon licensed by the Medical Board of California, an osteopathic physician and surgeon licensed by the Osteopathic Medical Board of California, or other any licensed health care provider, when the student’s title clearly indicates student status.
    4. A member or employee of the United States Armed Forces, licensed, certified, or registered in another state as an athletic trainer, as part of his or her temporary federal deployment or employment in California for a limited time.
21. Provides that the Athletic Training Practice Act does not limit, impair, or otherwise apply to the practice of any person licensed and regulated under the healing arts provisions of the BPC.
22. Provides that the Athletic Training Practice Act does not require new or additional third-party reimbursement for services rendered by a licensed athletic trainer.
23. Establishes the Athletic Trainers' Fund in the State Treasury and specifies the following:
    1. All fees collected pursuant to this chapter shall be paid into the fund.
    2. Moneys in the fund shall be available to the committee, upon appropriation by the Legislature, for expenditure by the committee to defray its expenses for administering this chapter
24. Establishes the following fees:
    1. An application fee of not more than one hundred dollars ($100).
    2. An initial license fee, which shall be prorated and based on the biennial renewal fee.
    3. A renewal fee to be established by the committee, not to exceed the costs of providing the regulatory administration of this chapter.
    4. A delinquency fee for late payment of the license renewal fee in the following amounts:
       1. If the license is renewed not more than two years from the date of its expiration, the delinquency fee shall be 50 percent of the renewal fee in effect at the time or renewal.
       2. If the license is renewed more than two years after date of expiration of the license, the delinquency fee shall be 100 percent of the renewal fee in effect at the time of renewal.
    5. A duplicate license fee, to replace one that is lost or destroyed, or in the event of a name change, of thirty-five dollars ($35).
    6. An endorsement fee of not more fifty dollars ($50).
    7. A fee to collect fingerprints for criminal history record checks charged by the Department of Justice and the Federal Bureau of Investigation.
25. Establishes, for purposes of initial implementation of the Athletic Training Practice Act and start-up costs for the athletic training licensing program, the following:
    1. Authorizes the Director of Consumer Affairs to seek and receive funds from the California Athletic Trainers Association or any other private individual or entity for the initial costs of implementing the Athletic Training Practice Act.
    2. Makes the Athletic Training Practice Act inoperable, except for the provisions relating to the Athletic Trainers' Fund, unless the Director of Consumer Affairs determines, on or before January 1, 2020, that sufficient funds to pay for the initial costs of the Athletic Training Practice Act have been received from the California Athletic Trainers Association, or some other source of funding, and the funds are deposited in the Athletic Trainers’ Fund.
    3. Specifies that, if the Director of Consumer Affairs determines that there are sufficient funds to pay for the initial costs of the Athletic Training Practice Act, then the provisions relating to the Committee and the licensing requirements will become operative on the first January 1 or July 1, whichever occurs first, immediately following the director's determination.
    4. Specifies that, if the provisions relating to the Committee and licensing become operative, the practice and title protection provisions will become operative on the first January 1 or July 1, whichever occurs first, immediately following the operative date of the Committee and licensing provisions under the practice act.
    5. Requires the director, if the director finds that sufficient funds are not available by January 1, 2020, to reexamine the funding status by June 30 of each subsequent year until either the director determines that sufficient funds have been received and deposited or until January 1, 2022, whichever occurs first.
    6. Requires the director to provide written notification to the Legislature and the Governor when the determination relating to sufficient funding has been made, and requires the director to concurrently post a notice on the DCA Internet Web site that the determination has been made.
    7. Provides that, failure of the director to provide notice of the determination of sufficient funds and post the notice on the DCA Internet Web site, does not affect the validity of a determination of sufficient.
26. This chapter shall remain in effect only until January 1, 2026, and as of that date is repealed.

FISCAL EFFECT: Unknown. This bill is keyed fiscal by Legislative Counsel.

COMMENTS:

Purpose. This bill is sponsored by the author. However, the author and the author's office note that they are working closely with the California Athletic Trainers Association. According to the author, "Athletic trainers are health care professionals who specialize in the prevention, recognition, treatment, and rehabilitation of injuries and conditions. California is the only state that does not regulate the profession of athletic training. Approximately 20% of individuals calling themselves athletic trainers in high schools have not completed a university level accredited athletic training education program or passed the national standard BOC athletic training certification examination. This puts student athletes at risk, since the mistakes of unlicensed athletic trainers can lead to serious, even life threatening issues. Further, in a growing number of states, including Utah, Texas, Hawaii, and Massachusetts, it is illegal for unregulated athletic trainers to practice in those states for any period of time. Consequently, when California athletic trainers travel to these states with their teams, they risk violating those state laws, since athletic trainers are not regulated in California putting themselves and their employers at risk. [This bill] defines a scope of practice, education and training qualifications, and practice standards for athletic trainers. Regulating the profession of athletic training will increase safety by guaranteeing that athletic trainers are qualified to identify and treat injuries and conditions, and that they have a defined scope of practice and work under the direction of physicians. It will also reduce liability by ensuring that employers are legally able to travel with their athletic trainers to states in which it is illegal for unregulated athletic trainers to practice."

Background. In California, many professions require a license to legally practice. Many of the professional licenses are administered by licensing boards, bureaus, and other entities within the DCA. The DCA licensing entities are established to protect the people of California through adequate regulation of businesses and professions that engage in activities that risk harm to the health, safety, and welfare of the public (BPC § 101.6).

The licensing entities establish the minimum level of competency required to engage in the occupations they regulate. As a result, an applicant seeking a license to practice from a licensing authority must demonstrate the ability to provide safe and effective services to the public. However, to avoid creating unnecessary barriers to entering a profession, the requirements should not require more than the minimum amount of training, education, and experience necessary to practice safely.

Sunrise of New Licensing Programs. The Legislature uses a Sunrise process for the purpose of assessing requests for new or increased occupational regulation, pursuant to GOV § 9148 and policy Committee Rules. The process includes a questionnaire and a set of evaluative scales to be completed by the group supporting regulation. The questionnaire is an objective tool for collecting and analyzing information needed to arrive at accurate, informed, and publicly supportable decisions regarding the merits of regulatory proposals. According to the author's Sunrise Questionnaire, "Athletic trainers are seeking licensure. The California Athletic Trainers Association (CATA) is the membership organization pursuing regulation for the athletic training profession in California."

The Legislature often receives requests for new or expanded occupational regulation. The regulatory proposals are generally intended to assure the competence of specified practitioners in different occupations. The requests have resulted in a proliferation of licensure and certification programs, which are often met with mixed reviews. Proponents argue that licensing benefits the public by assuring competence and an avenue for consumer redress. Critics disturbed by increased governmental intervention in the marketplace have cited shortages of practitioners and increased costs of service as indicators that regulation benefits a profession more than it benefits the public.

State legislators and administrative officials are expected to weigh arguments regarding the necessity of such regulation, determine the appropriate level of regulation (e.g., registration, certification or licensure), and select a set of standards (education, experience, examinations) that will assure competency. Requests for regulatory decisions often result in sharp differences of opinion as supporters and critics of the proposed regulation present their arguments. As a result, accurate information is necessary.

The Sunrise process was designed to ensure that necessary information is collected and that the arguments presented are objectively weighed. In developing the sunrise process, the Legislature and the DCA looked at methods for assessing needs for examinations, educational standards, and experience requirements that would assure provider competence. The project resulted in the current Sunrise process, an evaluative process designed to provide a uniform basis for the presentation and review of proposed occupational regulation. The Sunrise process includes a questionnaire and evaluative scales that allow systematic collection and analysis of the data required for decisions about new regulation.

This process accomplishes the following: (1) places the burden of showing the necessity for new regulations on the requesting groups; (2) allows the systematic collection of opinions both pro and con; and (3) documents the criteria used to decide upon new regulatory proposals. This helps to ensure that regulatory mechanisms are imposed only when proven to be the most effective way of protecting the public health, safety and welfare.

If review of the proponents’ case indicates that regulation is appropriate, a determination must be made regarding the appropriate level of regulation. As noted above, the public is best served by minimal government intervention. The definitions and guidelines below are intended to facilitate selection of the least restrictive level of regulation that will adequately protect the public interest.

• Level I: Strengthen existing laws and controls. The choice may include providing stricter civil actions or criminal prosecutions. It is most appropriate where the public can effectively implement control.
• Level II: Impose inspections and enforcement requirements. This choice may allow inspection and enforcement by a state agency. These should be considered where a service is provided that involves a hazard to the public health, safety, or welfare. Enforcement may include recourse to court injunctions, and should apply to the business or organization providing the service, rather than the individual employees.
• Level III: Impose registration requirements. Under registration, the state maintains an official roster of the practitioners of an occupation, recording also the location and other particulars of the practice, including a description of the services provided. This level of regulation is appropriate where any threat to the public is small.
• Level IV: Provide opportunity for certification. Certification is voluntary; it grants recognition to persons who have met certain prerequisites. Certification protects a title: non-certified persons may perform the same tasks but may not use “certified” in their titles. Usually an occupational association is the certifying agency, but the state can be one as well. Either can provide consumers a list of certified practitioners who have agreed to provide services of a specified quality for a stated fee. This level of regulation is appropriate when potential for harm exists and when consumers have substantial need to rely on the services of practitioners.
• Level V: Impose licensure requirements. Under licensure, the state allows persons who meet predetermined standards to work at an occupation that would be unlawful for an unlicensed person to practice. Licensure protects the scope of practice and the title. It also provides for a disciplinary process administered by a state control agency. This level of regulation is appropriate only in those cases where a clear potential for harm exists and no lesser level of regulation can be shown to adequately protect the public.

Licensing Reform. In July of 2015, the Obama Administration issued a report, Occupational Licensing: A Framework for Policymakers. The report was prepared by the U.S. Department of the Treasury Office of Economic Policy, the Council of Economic Advisers, and the Department of Labor. The report noted that there has been a sharp increase in the number of workers holding a license. It also noted that, while licensing offers important protections to consumers and can benefit workers, there are also substantial costs and licensing requirements may not always align with the skills necessary for the profession being licensed. Specifically, the report found:

There is evidence that licensing requirements raise the price of goods and services, restrict employment opportunities, and make it more difficult for workers to take their skills across State lines. Too often, policymakers do not carefully weigh these costs and benefits when making decisions about whether or how to regulate a profession through licensing. In some cases, alternative forms of occupational regulation, such as State certification, may offer a better balance between consumer protections and flexibility for workers.

In response to the report, the Little Hoover Commission began a study on occupational licensing in October 2015. The Little Hoover Commission, formally known as the Milton Marks “Little Hoover” Commission on California State Government Organization and Economy, is an independent state oversight agency.

In October 2016, the Little Hoover Commission published its report, Jobs for Californians: Strategies to Ease Occupational Licensing Barriers (Report #234). The report noted:

One out of every five Californians must receive permission from the government to work. For millions of Californians, that means contending with the hurdles of becoming licensed. Sixty years ago the number needing licenses nationally was one in 20. What has changed? What once was a tool for consumer protection, particularly in the healing arts professions, is now a vehicle to promote a multitude of other goals. These include professionalism of occupations, standardization of services, a guarantee of quality and a means of limiting competition among practitioners, among others. Many of these goals, though usually well intentioned, have had a larger impact of preventing Californians from working, particularly harder-to-employ groups such as former offenders and those trained or educated outside of California, including veterans, military spouses and foreign-trained workers.

The Commission found that the effects of occupational licensing may extend beyond the people entering a licensed occupation. The Commission specifically expressed concern over those with lower incomes, "[w]hen government limits the supply of providers, the cost of services goes up. Those with limited means have a harder time accessing those services. Consequently, occupational licensing hurts those at the bottom of the economic ladder twice: first by imposing significant costs on them should they try to enter a licensed occupation and second by pricing the services provided by licensed professionals out of reach."

As a result, the Commission recommended caution when looking at new licensing schemes (in addition to reviewing the current ones). Among other things, it recommended participating in a White House effort to review licensing programs across the country. It is providing, through the Department of Labor, $7.5 million in funding for a consortium of states to assess whether current levels of occupational regulation are appropriate.

The Commission also recommended that the state consider the impact of licensing on groups disproportionately harmed by the regulations, including:

1. Former offenders. Witnesses testified there is no evidence demonstrating that having a criminal record is related to providing low quality services. Unnecessary restrictions on criminal convictions simply punish again people who have already served their time.
2. Military spouses. When military spouses cannot transfer their licenses across state lines due to state restrictions, they spend precious time and resources re-completing requirements they already have, or taking, in all likelihood, a lower-paying, lower-skilled job. Married service members overwhelmingly report their spouse’s ability to maintain a career affects their decision to remain in the military.
3. Veterans. Veterans often face difficulty transferring their military education and experience into civilian licensing requirements. Sometimes they must repeat these requirements for a job they have been performing for years. Taxpayers then pay twice for them to learn the same set of skills: once while in the military and again through the G.I. Bill.
4. Foreign-trained workers. Like veterans, foreign-trained workers often have difficulty translating their education and experience into state licensing requirements and often take lower-skilled jobs instead. With worker shortages looming in mid- and high-skilled professions, the state should embrace these workers instead of erecting barriers to keep them out of jobs.

The Commission further noted that examining and assessing occupational regulations does not mean stripping consumer protection. Instead, it is an exercise in striking the appropriate balance between protecting consumers and limiting access to occupations and services.

For additional discussion please see:

Morris M. Kleiner, Reforming Occupational Licensing Policies, Discussion Paper 2015-01 (March 2015). The Hamilton Project; Brookings Institution.

Michelle Natividad Rodriguez and Beth Avery, Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Records (April 2016). National Employment Law Project.

Athletic Trainers. According to the California Occupational Guides published by the Labor Market Information Division within the Employment Development Department (EDD), Athletic Trainers "[e]valuate, advise, and treat athletes to assist recovery from injury, avoid injury, or maintain peak physical fitness." Athletic training educational programs prepare "individuals to work in consultation with, and under the supervision of physicians to prevent and treat sports injuries and associated conditions."

Education programs include "instruction in the identification, evaluation, and treatment of athletic injuries and illnesses; first aid and emergency care; therapeutic exercise; anatomy and physiology; exercise physiology; kinesiology and biomechanics; nutrition; sports psychology; personal and community health; knowledge of various sports and their biomechanical and physiological demands; and applicable professional standards and regulations."

According to the author's 2017 Sunrise Questionnaire, "Athletic trainers are unique in that they are the only profession to provide a continuum of care to their patients. This seamless provision of care encompasses everything from the active prevention of injuries to the evaluation, treatment and management of all stages of the injury recovery process. This is illustrated in the most recent Athletic Training Practice Analysis, 7th Edition (L) which identifies the following areas as being those tasks and duties performed by practitioners:

• Injury and Illness Prevention and Wellness Promotion
• Examination, Assessment, and Diagnosis
• Immediate and Emergency Care
• Therapeutic Intervention
• Health Care Administration and Professional Responsibility"

As noted above, the questionnaire states that the applicant group representing the athletic trainers in this effort is the California Athletic Trainers Association (CATA). The CATA is a professional association that represents athletic trainers in California and includes both certified and non-certified members. Certification is obtained from the Board of Certification for the Athletic Trainer (BOC). According to the CATA, education for athletic training has been standardized and is accredited by a national accreditation agency, the Commission on Accreditation of Athletic Training Education (CAATE).

Occupational Therapy and the CBOT. This bill establishes the athletic trainer licensing program under the CBOT. The CBOT is a licensing board under the DCA. The purpose of the CBOT is to protect consumers through regulation of the practice of occupational therapy in California. Specifically, the CBOT administers the licensing and enforcement programs for occupational therapists (OTs), occupational therapy assistants (OTAs), and occupational therapy aides. The CBOT also establishes and clarifies state-specific process and practice standards through administrative rulemaking.

Under the OT Practice Act, it is a misdemeanor to practice occupational therapy or hold oneself out as being able to practice occupational therapy, via titles or other methods, unless licensed or otherwise authorized by law. The OT Practice Act provides, among others, the following definitions relating to the breadth and scope of occupational therapy as regulated in California:

• “Practice of occupational therapy” means the therapeutic use of occupations.
• “Occupations” are “purposeful and meaningful goal-directed activities... which engage the individual’s body and mind in meaningful, organized, and self-directed actions that maximize independence, prevent or minimize disability, and maintain health.”
• “Occupational therapy services” include “occupational therapy assessment, treatment, education of, and consultation with, individuals who have been referred for occupational therapy services subsequent to diagnosis of disease or disorder (or who are receiving occupational therapy services as part of an Individualized Education Plan (IEP) pursuant to the federal Individuals with Disabilities Education Act (IDEA)).”
• “Occupational therapy assessment” is the identification of “performance abilities and limitations that are necessary for self-maintenance, learning, work, and other similar meaningful activities.”
• “Occupational therapy treatment” is defined as being “focused on developing, improving, or restoring functional daily living skills, compensating for and preventing dysfunction, or minimizing disability.” Treatment “may involve modification of tasks or environments to allow an individual to achieve maximum independence.”
• “Occupational therapy techniques that are used for treatment” are defined as involving “teaching activities of daily living (excluding speech-language skills); designing or fabricating selective temporary orthotic devices, and applying or training in the use of assistive technology or orthotic and prosthetic devices (excluding gait training).”
• “Occupational therapy consultation” provides expert advice to enhance function and quality of life. Consultation, like treatment, may also “involve modification of tasks or environments to allow an individual to achieve maximum independence.”

The CBOT oversees over 12,000 OTs and 2,500 OTAs. During each of the last three fiscal years, the CBOT issued a combined average of 1,018 licenses and renewed a combined average of 6,849 licenses.

The CBOT’s mandates include:

• Administer, coordinate, and enforce the provisions of the Practice Act.
• Evaluate the qualifications of applicants.
• Approve the examinations for licensure.
• Adopt rules relating to professional conduct to carry out the purpose of the Practice Act, including, but not limited to, rules relating to professional licensure and to the establishment of ethical standards of practice for persons holding a license to practice occupational therapy or to assist in the practice of occupational therapy in this state.

The current CBOT mission statement, as stated in its 2016–2019 Strategic Plan, is "[t]o protect California consumers of occupational therapy services through effective regulation, licensing and enforcement.”

The CBOT also interacts frequently with stakeholders, such as professional associations and consumers. The two professional associations cited in the CBOT’s 2016 Sunset Review Report are the local Occupational Therapy Association of California, Inc. (OTAC) and the national American Occupational Therapy Association, Inc. (AOTA). The CBOT also utilizes the examination provided by the National Board for Certification in Occupational Therapy (NBCOT), a voluntary certification organization.

Current Related Legislation. AB 2138 (Chiu and Low) of the current Legislative Session makes numerous changes to the criteria for denial and discipline of a license. STATUS: This bill is pending in this Committee.

2409 (Kiley) of the current Legislative Session establishes a right to engage in a profession or vocation without being subject to an occupational regulation that imposes a substantial burden on that right, and creates a private right of action for individuals to sue a regulatory board in court, wherein the board must prove through a preponderance of evidence that any challenged occupational regulation is limited to what is demonstrably necessary and narrowly tailored to fulfill a legitimate public health, safety, or welfare objective. STATUS: This bill is pending in this Committee.

2483 (Voepel) of the current Legislative Session requires a public entity to pay a judgment or settlement for treble damage antitrust awards against a member of a regulatory board within the DCA for an act or omission occurring within the scope of the member’s official capacity as a member of that regulatory board, as specified. STATUS: This bill is pending in the Assembly Committee on Appropriations.

Prior Related Legislation. AB 1510 (Debabneh) of 2017 was substantially similar to this bill. NOTE: This bill died pursuant to Art. IV, Sec. 10(c) of the Constitution.

AB 161 (Chau) of 2015 would have established certification and training requirements for athletic trainers and prohibit individuals from calling themselves athletic trainers unless they meet those requirements. NOTE: This bill was vetoed by Governor Brown, noting that the requirements under the bill would “impose unnecessary burdens on athletic trainers without sufficient evidence that they are really needed.”

AB 1890 (Chau) of 2014 was substantially similar to AB 161 (Chau) of 2015, establishing title protection for ATs. NOTE: This bill was vetoed by Governor Brown, noting that the requirements under the bill would “impose unnecessary burdens on athletic trainers without sufficient evidence that they are really needed.”

AB 864 (Skinner) of 2013 would have established the licensure and regulation of athletic trainers through the creation of an Athletic Trainer Licensing Committee under the Physical Therapy Board of California. NOTE: This bill died in the Assembly Committee on Appropriations.

SB 1273 (Lowenthal) of 2012 was substantially similar to AB 864. NOTE: This bill died in the Senate Committee on Business, Professions, and Economic Development.

AB 374 (Hayashi) of 2011 as introduced would have established the Athletic Trainer Licensing Committee within the Medical Board of California to license and regulate athletic trainers commencing January 1, 2013, with a sunset date of January 1, 2018, and was later amended to provide title protection for athletic trainers. NOTE: This bill was substantially amended into AB 374 (Hill), Chapter 364, Statutes of 2011, relating to funeral directors and embalmers)

AB 1647 (Hayashi) of 2010 would have established certification and training requirements for athletic trainers and prohibited individuals from calling themselves athletic trainers unless they meet those requirements. NOTE: This bill was vetoed by Governor Schwarzenegger.

SB 284 (Lowenthal) of 2007 would have enacted the Athletic Trainers Registration Act prohibiting a person from representing himself or herself as a “certified athletic trainer,” unless he or she is registered by an athletic training organization. NOTE: This bill was vetoed by Governor Schwarzenegger.

SB 1397 (Lowenthal) of 2006 would have enacted the Athletic Trainers Certification Act, prohibiting a person from representing him or herself as an athletic trainer unless he or she is certified as an athletic trainer by an athletic training organization, as defined. NOTE: This bill was vetoed by Governor Schwarzenegger.

AB 614 (Lowenthal) of 2003 would have required the DCA to submit a recommendation to the Legislature as to whether the state should license and regulate athletic trainers by January 1, 2006, if the DCA is provided with an occupational analysis of persons providing athletic trainer services by July 1, 2005. NOTE: This bill was held in Senate Committee on Business and Professions Committee to allow the Joint Committee on Boards, Commissions and Consumer Protections to examine whether athletic trainers should be licensed as part of the Sunrise process.

AB 2789 (Lowenthal) of 2002 would have required the Department of Consumer Affairs to review the need for licensing of athletic trainers and undertake an occupational analysis. NOTE: This bill was held under submission in the Assembly Committee on Appropriations.

SB 2036 (McCorquodale), Chapter 908, Statutes of 1994, expanded existing law into the current Sunrise process, covering the creation of new categories of licensed professionals and the revision of the scope of practice of an existing category of licensed professional.

ARGUMENTS IN SUPPORT:

The California Athletic Trainers' Association, along with a coalition of supporting organizations, writes in support, "Athletic Training is a healthcare profession recognized by 49 states, the District of Columbia, the federal government, the American Medical Association and many employers, organizations, and associations. Athletic trainers must complete a challenging accredited athletic training education program and pass a national certification examination. Athletic trainers provide a continuum of care to physically active individuals that starts with injury and illness prevention, includes injury recognition and emergency management, and progresses through treatment, rehabilitation and return to activity. There are over 3,100 certified athletic trainers in California working in a variety of settings with a variety of patients. While many athletic trainers traditionally work in schools, colleges/universities and professional sports, approximately a third work in other settings including industry, police/fire, performing arts, military and healthcare facilities….

The public is at risk of harm from uneducated and uncertified individuals holding themselves out as athletic trainers. According to recent California Interscholastic Federation (CIF) data, over 150 such individuals are currently practicing on unknowing young athletes and giving advice to parents who incorrectly assume that the “athletic trainer” their school has hired is qualified. Tens of thousands of student athletes come in contact with these individuals on a daily basis. Unfortunately, albeit predictably, there are documented cases of harm resulting to athletes under the care of these unqualified individuals.

In addition, the state has increased the responsibility schools and organizations have for managing concussions. Athletic trainers are barred by statute from specific components of concussion management, including supervision of 'return to activity protocols,' even though athletic trainers are typically the most available and qualified individuals to do so – the reason for this egregious and dangerous situation is only because athletic trainers are not licensed in California.

In some institutions in California, athletic trainers are barred from looking at, or entering into, patient medical records of that institution because of their non-licensed status, which obviously compromises the care that they and other members of the healthcare team provide….

Only licensure can provide the scope of practice necessary to remove the legal grey area that athletic trainers work under and decreases liability to athletic trainers and their employers. Only licensure provides the regulatory framework required of California athletic trainers travelling to other states to practice in accordance with their state law. Only licensure gives other licensed healthcare providers the clear legal protection necessary to interact with athletic trainers and allowing safe, quality care. Only licensure creates statutory guidelines that prevent unqualified individuals from providing medical care to young athletes. Only licensure creates a board to investigate and discipline/remove individuals who have committed harm to the public."

The California Medical Association writes in support that this bill "would professionalize the practice of athletic training and provide the scope of practice necessary to remove the legal grey area that athletic trainers work under and decreases liability to athletic trainers and their employers. The Committee would be responsible for issuing and renewing athletic training licenses and imposing disciplinary action. In addition, the bill protects consumers by providing for athletic trainers to practice under the supervision of a physician and surgeon using a written order, protocols, or athletic treatment plans."

ARGUMENTS IN Opposition:

The American Occupational Therapy Association and the Occupational Therapy Association of California write in opposition, "[w]e do not believe the Board of Occupational Therapy is the appropriate regulatory body to oversee athletic trainers, who receive very different training from OTs and perform services, though significant, that greatly differ from occupational therapy. Further, the number of licensed occupational therapy practitioners in California continues to increase. The Board’s focused oversight on occupational therapy and the people it serves remains critically important. Additionally, the language in [this bill] calls for written or verbal treatment protocols for an athletic trainer that is directed by a physician. Although there are significant concerns with the broad language outlining physician supervision, if such supervision is required, it logically follows that the California Medical Board might be best suited to oversee athletic trainers."

The California Academy of PAs is opposed to this bill unless amended, writing that "[t]he proposed scope in the bill would permit athletic trainers to assess and treat a medical condition exacerbated while participating in a physical activity as well as provide immediate care for an injury or condition sustained or exacerbated while participating in a physical activity. However, the bill does not define what injuries or conditions can be treated, such as limiting the practice to the muscular skeletal system which is frequently inflicted with athletic injuries. Nor does the bill require the athletic trainer to refer a patient to another healthcare practitioner for the purpose of having a medical condition diagnosed or limit the practice settings to student-athletes, athletes or athletic settings. The only requirement is that the Athletic Trainer provides treatment under the direction of a physician, which may be based solely on protocols. Without limiting this scope of practice, this bill creates ambiguity about practice parameters and settings which would allow Athletic Trainers to assess and treat any medical condition or injury arising from an athletic injury in endless settings."

The California Physical Therapy Association and California Nurses Association are opposed to this bill unless amended, writing that, "There is no demonstrated need for the creation of a new bachelor’s degree-level health care provider that provides services like that of a physical therapist, physician’s assistant, nurse, or nurse practitioner. The scope of practice outlined in [this bill] is expansive and not consistent with the education and training of athletic trainers….

Unfortunately, the bill does not define 'athletic activity' as being different from 'physical activity' or delineate the setting in which the athletic trainer works. Currently, athletic trainers primarily work with athletes in an athletic setting (i.e. sports team, university, etc.). Importantly, it is not clear how the scope of practice of the athletic trainer as outlined in the current bill would differ from the physical therapist or occupational therapist, professionals who are licensed to treat active individuals in any setting. Coupled with a later section defining the relationship with a physician and allowance for treatment by an athletic trainer, the scope of practice of athletic trainers under [this bill] would allow treatment of persons with a range of medical conditions. Proponents also claim that athletic trainers work in a variety of settings, which is true, but they fail to mention that they work in these settings not as athletic trainers, but in other capacities, such as Medical Assistants, Physical Therapy Aides and other roles….

Licensure is unnecessary. Title protection would be a more appropriate measure. The Legislature’s Joint Committee on Boards, Commissions and Consumer Protection reviewed the issue of licensure for athletic trainers in 2005, and unanimously recommended against licensing. The argument that anyone could hold themselves out as an athletic trainer is easily addressed by 'title protection,' which would prohibit an individual from calling himself or herself a 'certified athletic trainer' without being properly certified by an appropriate body identified in legislation. In fact, title protection legislation reached the Governor’s desk in 2006 (SB 1397/Lowenthal), 2014 (AB 1890/Chau), and 2015 (AB 161/Chau). Unfortunately, SB 1397 was vetoed by Gov. Schwarzenegger, and AB 1890 and AB 161 were both vetoed by Gov. Brown."

The United Nurses Associations of California/Union of Health Care Professionals (UNAC/UHCP) is opposed to this bill unless amended, writing that "[this] bill would define a scope of practice that would allow treatment of an injury sustained while engaged in 'athletic activity.' The bill then defines 'athletic activity' so broadly that it could include virtually everything: 'athletic activity' means participation in activity requiring physical strength, range-of-motion, flexibility, body awareness and control, speed, stamina, or agility. This could encompass an injury sustained while walking, driving a vehicle, or lifting boxes at work. Moreover, the athletic trainer is not required to work under the supervision of a physician or surgeon, as is required for virtually every other health professional. Instead, they must merely act 'under the direction' of a physician or surgeon, which simply means the athletic trainer could have a telephone conversation with a physician or surgeon and then begin treatment with no further interaction or supervision of the treatment. We do not believe this will lead to positive patient outcomes.

In addition, the currently articulated scope of practice essentially encompasses the scopes of physical therapists and occupational therapists, but with fewer restrictions. In other words, there are already licensed professionals who are qualified to practice in this area and thus the creation of a new licensure scheme is not warranted."

POLICY ISSUES FOR CONSIDERATION:

Burdens on the Profession. As noted above, the purpose of the "Sunrise" process is to ensure that new regulatory schemes are necessary to protect consumers, taking into consideration the burdens on the profession to be regulated. For example, all licensing programs include initial licensing and renewal fees. While fees vary between license types, in general, the fewer the number of licensees, the greater the fees needed. These would be in addition to the current costs for obtaining BOC certification ($60 application fee for non-NATA members, $330 examination fee, $25 examination eligibility fee, $25 certification verification fee), maintaining BOC certification ($55 annually for non-NATA members), maintaining continuous certification in Emergency Cardiac Care, and completing continuing education (50 units annually).

According to the author's 2017 Sunrise Questionnaire, the last survey of the ATs in support of licensure was performed in 2011. At the time, there were almost 2,500 BOC-certified ATs in California. Of the 2,500 ATs, 2,014 were surveyed. Of the 2,014 surveyed, 760 responded. Of the760 respondents, 745 were in favor (30% of all BOC-certified ATs at the time), while 15 opposed. Currently, there are approximately 3,100 BOC-certified ATs, and CATA purports to represent 87% of the BOC-certified ATs and some uncertified ATs.

Need for Licensure. According to the author, "[t]here is urgent and compelling need to license the profession of athletic training to: (1) protect the public; (2) protect employers of athletic trainers; and (3) protect athletic trainers." However, as noted above, the primary focus of licensure is consumer protection. While protection of athletic trainers and their employers are a welcome collateral benefit, protection of the profession and employers are insufficient to support licensure if there is no consumer protection need that cannot be solved by a lower form of regulation.

According to the author's sunrise questionnaire, "[t]he state of California has demanded strict standards for medical professionals. This reduces the chance of incompetent persons making difficult and life threatening decisions. Athletic training is one of the last allied health professions to be regulated by California, thus increasing the likelihood that unqualified, unethical or sanctioned individuals may practice athletic training."

With regard to specific harms:

Nationally in 2010, nearly 100 young athletes died, including 13 in California as a result of their participation in sports. These deaths were due to injuries and illnesses that included: mild traumatic brain injury, severe heat illness, exertional sickling, sport-induced asthma, or sudden cardiac arrest – all during or immediately following sporting activity. Additionally, children suffer cervical spine injuries and other catastrophic events in sports-related activity….

In 2015 the CATA began offering anonymous reporting of harm on the association website. The CATA has received 93 complaints from the public regarding actions by both certified and non-certified individuals practicing athletic training. This includes harm to the public with patients asking the association to initiate disciplinary action against athletic trainers.

Due to the nature of the injuries and conditions that athletic trainers are responsible for managing, there is a very real potential of harm. According to the US Department of Labor Division of Practitioner Data Banks, a reporting repository for sanctions made by state boards, there were 590 reports of sanctions to athletic trainers between 2000 and 2014. Some of these sanctions were for conduct including incompetent practice/harm, practicing beyond the scope of practice and sexual misconduct. However because this is a voluntary database it likely underestimates sanctions and harm. The BOC reported over 1,800 violations of professional practice standards since 2014 with 178 in California including sexually based offenses.

There are also instances of harm that resulted in lawsuits and malpractice claims against athletic trainers. The US Department of Labor Division of Practitioner Data Banks has a list of voluntary reports of malpractice payment claims against athletic trainers. There are 11 reports between 2000 and 2015 for reasons including improper technique, delay in care, failure to diagnose, and failure to recognize a complication. However as this is a voluntary database, it likely underestimates claims. We also identified at least 5 other cases that were filed, settled, or reached a verdict in 2011 alone. These cases involved 3 deaths and the sequelae of a back injury and concussions. We also noted another case in 2011 of a death of a collegiate athlete resulting in the firing of a collegiate athletic trainer, although no lawsuit has been filed to date. Two additional athletic trainers were fired after being arrested on sexual crime charges.

Looking farther back, two attached memorandum from law firms identify a combined 20 other cases involving harm as the result of actions taken by athletic trainers (Analysis of Potential Harm - Hughes Luce, Athletic Trainers Legal Duties - Thorpe, Reed & Armstrong). While cases as far back as 1982 are noted, as well as cases related to the unavailability of athletic trainers, in the decade between 1992 and 2002, over 20 cases of athletic trainer caused harm were reported. This information also underestimates the issue of harm as some cases are not reported publically and some cases get resolved prior to a lawsuit being filed.

One point of distinction is the difference between preventing harm from unqualified practitioners and incentivizing the use of qualified practitioners. Licensing necessarily limits the available pool of practitioners. Of the 3,100 current BOC-certified ATs, not all will qualify for licensure, and none of the uncertified ATs will be permitted to practice.

Physician Direction. This bill authorizes an athletic trainer to perform services under the direction of a physician and surgeon and authorizes the Athletic Training Committee to determine additional methods for direction. Direction is not currently a recognized form of supervision under California law.

Relation of Occupational Therapy to Athletic Training. Athletic training, as defined under this bill and elsewhere is closer to the practice of sports and emergency medicine than it is to occupational therapy. If this bill passes this Committee, the author may wish to consider placing the AT Licensing Committee under the MBC.

Governor's Vetoes. Last session, two different bills reached the Governor's desk which would have provided certified athletic trainers with title protection. Each was vetoed, with essentially the same message:

"This bill prohibits a person from using the title of athletic trainer unless they have received a bachelor's degree and are certified by a national certification body. I vetoed a nearly identical measure last year and continue to believe that the conditions set forth in this bill impose unnecessary burdens on athletic trainers without sufficient evidence that changes are needed."

IMPLEMENTATION ISSUES:

Determination of Sufficient Funds. This bill requires the Director of Consumer Affairs to determine whether there are "sufficient funds" for the AT licensing program. It is unclear what constitutes "sufficient funds."

Due to the low number of potential licensees, the application and renewal fees may need to be higher than expected to sustain the program. Another question is whether the Athletic Trainers' Fund should be merged with the Occupational Therapy Fund.

For example, the Board of Vocational Nursing and Psychiatric Technicians previously had two funds, one for vocational nurses and one for psychiatric technicians. While the licenses are relatively similar, because there are significantly less psychiatric technicians than vocational nurses, the psychiatric technicians paid twice the amount in license fees than vocational nurses ($300 to $150). This was remedied by merging the funds in AB 179 (Bonilla), Chapter 510, Statutes of 2015.

Amendments:

The author should amend the bill to change the Committee into a board and make conforming changes to BPC §§ 101 and 144 (excluded here for space), define athletes, athletic training, and other previously excluded terms, and reduce the bill from licensure to registration and title protection:

Chapter 5.8 (commencing with Section 2697) is added to Division 2 of the Business and Professions Code, to read:

CHAPTER 5.8. Athletic Trainers

Article 1. Administration General Provisions

2697. This chapter shall be known, and may be cited, as the Athletic Training Practice Act.

2697.1. For the purposes of this chapter, the following definitions apply:

(a) “Athlete” means a person who participates in an athletic activity.

(b) “Athletic activity” means an activity involving an athlete that requires physical strength, range-of-motion, flexibility, body awareness and control, speed, stamina, or agility that is related to the following:

(1) An activity or event conducted by any of the following:

(A) An intercollegiate athletic association or interscholastic athletic association.

(B) A professional athletic organization.

(C) An amateur athletic organization.

(2) A professional or recreational activity that meets all of the following:

(A) Has officially designated coaches or trainers.

(B) Conducts regularly scheduled practices or workouts that are supervised by coaches or trainers.

(C) Has established schedules for performances, competitive events, or exhibitions.

(c) “Athletic trainer” or “certified athletic trainer” means a registrant who person who meets the requirements of this chapter, is licensed by the committee, and practices under the direction of a licensed physician or surgeon. An athletic trainer is a healing arts licensee registrant. practices athletic training and is certified pursuant to Section 2967.X.

(d) “Athletic training” includes all of the following:

(1) Risk management and injury or illness prevention through preparticipation screening and evaluation, educational programs, physical conditioning and reconditioning programs, application of commercial products, use of protective equipment, promotion of healthy behaviors, and reduction of environmental risks.

(2) The clinical evaluation and assessment of an injury sustained or exacerbated while participating in athletic activity or a condition exacerbated while participating in athletic activity, for which the athletic trainer has had formal training during his or her professional education program or advanced postprofessional study and falls within the practice standards athletic training, by obtaining a history of the injury or condition, inspection and palpation of the injured part and associated structures, and performance of specific testing techniques related to stability and function to determine the extent of an injury.

(3) The immediate care of an injury sustained or exacerbated while participating in athletic activity or a condition exacerbated while participating in athletic activity, for which the athletic trainer has had formal training during his or her professional education program or advanced postprofessional study and falls within the practice standards of athletic training, by the application of first-aid and emergency procedures, techniques, and equipment for nonlife-threatening or life-threatening injuries or conditions.

(4) The rehabilitation and reconditioning from an injury sustained or exacerbated while participating in athletic activity and reconditioning from a condition, for which the athletic trainer has had formal training during his or her professional education program or advanced postprofessional study and falls within the practice standards of athletic training, including, but not limited to, the application of physical agents and modalities, therapeutic exercise, manual therapy and massage, standard reassessment techniques and procedures, commercial products and durable medical equipment, and educational programs, in accordance with guidelines established with a healing arts licensee registrant.

(5) The practice of athletic training does not include grade 5 spinal manipulations, the diagnosis of disease, or the practice of medicine.

(b) (e) “Board” means the California Board of Occupational Therapy. Athletic Training Board.

(c) (f) “Committee” means the Athletic Trainer Licensing Committee.

(d) (g) “Director” means the Director of Consumer Affairs.

(h) “Registrant” means a person who practices athletic training and is registered pursuant this chapter.

The author should amend the bill to remove the new board from under the CBOT and add sunset dates:

Article 2. Administration

2697.2. (a) There is established the Athletic Trainer Licensing Committee Training Board within the Department of Consumer Affairs. California Board of Occupational Therapy. The committee shall consist of seven members.

(b) The board is comprised of seven members seven committee members shall include the following: as follows:

(1) Three licensed Two athletic trainers. trainers certified pursuant to Section 2697.4 Initially, the committee shall include three athletic trainers who have graduated from a professional degree program described in subdivision (b) of either Section 2697.4 or 2697.5 prior to approval by the committee and who will satisfy the remainder of the licensure requirements described in Section 2697.5, including submission of application for licensure, as soon as it is practically possible.

(2) Two Four public members.

(3) One physician and surgeon licensed by the Medical Board of California or one osteopathic physician and surgeon licensed by the Osteopathic Medical Board of California.

(4) One occupational therapist licensed by the board.

(c) Subject to confirmation by the Senate, the Governor shall appoint one of the licensed athletic trainers, two of the public members, and the physician and surgeon or osteopathic physician and surgeon, and the licensed occupational therapist. surgeon. The Senate Committee on Rules and the Speaker of the Assembly shall each appoint a licensed athletic trainer.public member.

(d) (1) All appointments shall be for a term of four years and shall expire on June 30 of the year in which the term expires. Appointees may be reappointed once. Vacancies shall be filled for any unexpired term.

(2) Notwithstanding paragraph (1), for initial appointments to the committee, one public member and the licensed occupational therapist appointed by the Governor and one of the licensed athletic trainers shall serve terms of two years, and the remaining members shall serve terms of four years.

(e) Each member of the committee board shall receive per diem and expenses as provided in Section 103.

(f) Subject to Sections 107 and 154, the committee board may employ an executive officer and other officers and employees. employees as necessary to administer this chapter.

(g) This section shall remain in effect only until January 1, 2023, and as of that date is repealed.

2697.25 Notwithstanding any other law, the repeal of Section 2697.2 renders the board or its successor entity subject to review by the appropriate policy committees of the Legislature.

2697.3. (a) (1) The committee board shall adopt, repeal, and amend regulations as may be necessary to administer and enforce this chapter.

(2) Before adopting regulations, the committee board may consult the professional standards issued by the National Athletic Trainers Association, the Board of Certification, Inc., the Commission on Accreditation of Athletic Training Education, or any other nationally recognized professional athletic training organization.

(b) The committee board shall investigate each applicant verify, to the extent practicable, the information provided, certified, or attested to in an application before a license registration is issued in order to determine whether the applicant meets the qualifications required by this chapter.

(c) The board shall maintain a publicly accessible registry of all registrants that contains the information specified under Section 2697.5, except that, at the request of the registrant, the board shall not make the registrant’s residential address available to the public if the registrant provides an alternate address of record.

(d) The committee board shall give protection of the public the highest priority in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.

The author should amend the bill to describe a combination of registration and title protection that (1) requires those providing athletic training services to register, serving as a data collection function and places additional scrutiny on those who provide athletic training services to consumers and identify potential harms and (2) replaced direction with supervision and require the physician to determine competence for purposes of supervision, and delineate scope of practice:

Article 1.5. Licensure 3. Registration and Protected Titles

2697.4. (a) A person shall not practice athletic training or hold himself or herself out as an athletic trainer or as being able to practice athletic training, or to render athletic training services in this state unless registered with the board pursuant to this chapter.

(b) A person shall not use the title “athletic trainer,” “licensed athletic trainer,” “certified athletic trainer,” “registered athletic trainer,”“athletic trainer certified,” “a.t.,” “a.t.l.,” “l.a.t,” “c.a.t.,” “a.t.c.,” or any other variation of these terms, or any other similar terms indicating that the person is an athletic trainer unless that person is registered pursuant to this chapter and meets all of the following requirements:

(1) The registrant has graduated from a professional degree program in athletic training accredited by the Commission on Accreditation of Athletic Training Education, or its predecessors or successors, and approved by the committee, at an accredited postsecondary institution or institutions approved by the board.

(2) The registrant has passed an athletic training certification examination offered by the Board of Certification, Inc., its predecessors or successors, or another nationally accredited athletic trainer certification agency approved and recognized by the board.

(3) The board has received official verification of the registrant’s certification issued by the Board of Certification, Inc., its predecessors or successors, or another nationally accredited athletic trainer certification agency approved and recognized by the board.

(4) The registrant maintains the certification issued by the Board of Certification, Inc., its predecessors or successors, or another nationally accredited athletic trainer certification agency approved and recognized by the board.

(c) (1) A registrant who meets the requirements of subdivision (b) shall only render athletic training services pursuant to verbal or written order under the supervision of a physician and surgeon licensed by the Medical Board of California or an osteopathic physician and surgeon licensed by the Osteopathic Medical Board of California.

(2) For purposes of this section, “supervision” means services are only provided pursuant to an athletic training treatment plan or protocol that meet all the following:

(A) The plan or protocol specifies the athletic training services, settings, and referral requirements specific to the athletic trainer’s individual training and competence.

(B) The plan or protocol is established with and approved by the supervising physician and surgeon or osteopathic physician and surgeon.

(C) The plan or protocol accounts for the supervising physician and surgeon’s availability to the athletic trainer as determined by the supervising physician.

(d) A registrant shall refer an athlete to an appropriate licensed health care provider when the management of the injury or condition does not fall within the competence of the registrant.

(e) A registrant shall not provide, offer to provide, or represent that he or she is qualified to provide any treatment that he or she is not qualified to perform by his or her professional education, advanced postprofessional study, license, or individual training and competence.

(f) A registrant who does not meet the requirements of subdivision (b) of this section may use the titles “manager,” “coach,” “assistant,” “associate,” ”volunteer,” or any other title that does not imply the registrant is an athletic trainer who meets the requirements of subdivision (b) of this section.

(g) Except as otherwise provided in this chapter, the committee board shall issue an athletic training license registration to an applicant who meets all of the following requirements: requirements at the time of application:

2697.5. (a) At the time of application, The applicant is over 18 years of age, is not addicted to alcohol or any controlled substance, and has not committed acts or crimes constituting grounds for denial of a license under Section 480.age.