Board revises application rules, debates mental-health question over legal risk

Regulations counsel returned revised application regulatory text to the board on Nov. 8 to reflect the agency’s move to online application systems and to conform with recent legislation limiting what criminal-history or health questions agencies may collect.

Counsel highlighted four kinds of documents that must still be submitted outside the online platform (for example, National Data Bank self-query reports and fingerprint results) and walked the board through language added to align with recent changes such as Assembly Bill 2138 (limiting the collection of criminal-history information on applications).

A lengthy policy discussion focused on a proposed mental- and physical-health question. Counsel advised that the earlier formulation — which asked whether an applicant had “ever been diagnosed or treated” for a mental or physical condition that would interfere with practice — was likely overbroad and might invite litigation. Counsel recommended removing that broad history question, noting litigation against other licensing entities and subsequent statutory changes. As an alternative for boards that wish to retain some inquiry, counsel offered a narrowly drawn formulation used by an acupuncture board that asks only whether an applicant currently has a medical condition that impairs or limits the ability to practice with reasonable skill and safety.

Board members debated the tradeoffs: some said the narrow question would be defensible but might miss rare situations; others said the application historically returned very few affirmative responses and counsel’s suggested removal reduces litigation risk. Counsel said the board could reintroduce a targeted question later if a demonstrated need arose.

After discussion the board approved revised text consistent with counsel’s recommendations and authorized staff to submit the regulatory package to DCA for review and to proceed with the rulemaking steps outlined in the motion.