BILL ANALYSIS
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|Hearing Date:July 13, 2009 |Bill No:AB |
| |456 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND
ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: AB 456Author:Emmerson
As Amended:May 28, 2009 Fiscal: Yes
SUBJECT: Dentistry: diversion program.
SUMMARY: Makes changes to the Dental Board of California's diversion
program for licensees who are impaired by alcohol and/or drugs.
Existing law:
1)Establishes the Dental Practice Act (DP Act) to govern the practice
of dentistry and the Dental Board of California (DBC) to license and
regulate dentists in California and states that protection of the
public is the highest priority of DBC.
2)Requires DBC to establish criteria for the acceptance, denial, or
termination of a licentiate in a diversion program and states that
unless ordered by DBC as a condition of licentiate disciplinary
probation, only those licentiates who have voluntarily requested
diversion treatment and supervision by a diversion evaluation
committee (DEC) shall participate in a diversion program.
3)Establishes the duties of a DEC, including the evaluation of
licentiates who request to participate in the diversion program, and
to review and designate the treatment facilities that a licentiate
may be referred to, and provides that a DEC operates under the
direction of the program manager who has the primary responsibility
to review and evaluate recommendations of the DEC.
4)Allows a licentiate who is not the subject of a current
investigation to self-refer to the diversion program on a
confidential basis.
5)Allows a licentiate under current investigation to request entry
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into the diversion program by contacting DBC's diversion program
manager. Allows the diversion program manager to refer the
licentiate to a DEC for evaluation and eligibility, and may require
the licentiate, while under current investigation for any violations
of the Act, or other violations, to execute a statement of
understanding that states that the licentiate understands that his
or her violations of the Act or other statutes would otherwise be
the basis for discipline, may still be investigated and the subject
of disciplinary action.
6)Requires, if the reasons for a current investigation are based
primarily on self-administration of controlled substances or
dangerous drugs or alcohol, DBC to close the investigation without
further action if the licentiate is accepted into the diversion
program and successfully completes the requirements of the program.
7)Requires, if the licentiate withdraws or is terminated from the
program by a DEC and the termination is approved by the program
manager, an investigation to be reopened and disciplinary action
imposed, if warranted, as determined by DBC.
8)States that acceptance or participation in a diversion program does
not preclude DBC from investigating or continuing to investigate, or
to take disciplinary action or continue to take disciplinary action
against any licentiate for unprofessional conduct committed before,
during or after participation in the diversion program.
9)Indicates that any licentiate that is terminated from the diversion
program for failure to comply with program requirements is subject
to disciplinary action for acts committed before, during or after
participation in the diversion program.
10)States that whenever it appears that any person holding a license,
certificate or permit may be unable to practice his or her
profession safely because the licentiate's ability to practice is
impaired due to mental illness, or physical illness affecting
competency, the licensing agency may order the licentiate to be
examined by one or more physicians and surgeons or psychologists
designated by the agency.
11)Allows a DEC to convene in closed session to consider reports
pertaining to any licentiate requesting or participating in a
diversion program.
12)Establishes the Bagley-Keene Open Meeting Act which provides that
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it is the public policy of this state that public agencies exist to
aid in the conduct of the people's business and the proceedings of
public agencies be conducted openly so that the public may remain
informed. All meetings of a state body shall be open and public and
all persons shall be permitted to attend any meeting of a state body
except as otherwise provided in this article. Requires that state
bodies, as defined, provide notice of its meeting to any person who
requests that notice in writing.
13)Allows a state body to hold closed sessions during a regular or
special meeting, as specified. Requires, prior to holding any
closed session, the state body to disclose, in an open meeting, the
general nature of the item or items to be discussed in the closed
session.
This bill:
1)Clarifies the intent of the Legislature that the diversion program
implemented by DBC to be both a rehabilitative and a monitoring
program for licensees whose participation is a component of a
probationary or disciplinary action.
2)Deletes existing provisions within the DP Act that allow a diversion
program manager, prior to authorizing a licentiate to enter into the
diversion program, to require the licentiate while under current
investigation for any violations of the Act or other violations, to
execute a statement of understanding that states that the licentiate
understands that his or her violations of the Act or other statutes,
that would otherwise be the basis of discipline, may still be
investigated and the subject of disciplinary action.
3)Deletes existing requirement that prohibits DBC from taking further
action against a licensee who is investigated for
self-administration of controlled substances or dangerous drugs or
alcohol, and instead gives DBC the option to close the
investigation. Allows, instead of requires, DBC to reopen an
investigation and impose disciplinary action, if warranted.
4)States that if a DEC determines that a licensee, who is denied
admission into the diversion program or terminated from the
diversion program, presents a threat to the public or his or her own
health and safety, the DEC must report the name and license number
of the licensee, along with a copy of all diversion records for that
licensee, to DBC enforcement program. Allows DBC to use any of the
records it receives, as specified, in any disciplinary or criminal
proceeding.
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5)Deletes existing law provisions which states that a committee (DEC)
shall only convene in closed session to the extent that it is
necessary to protect the privacy of such a licentiate, and instead
states that a meeting that will be convened entirely in closed
session to consider matters relating to any licensee requesting or
participating in a diversion program does not need to comply with
the notice and disclosure requirements of the Bagley-Keene Open
Meeting Act.
6)Allows the DEC to report to the DBC enforcement program all acts of
substantial noncompliance by the licensee who is participating in
the diversion program as a result of his or her license being placed
on probation, or as a result of a referral related to a board
investigation, as determined by the DEC with the concurrence of the
program manager. Requires this report to be made no more than 24
hours after the diversion evaluation committee makes its
determination.
7)Provides that if such licensee does not successfully complete the
diversion program, all diversion records for that licensee shall be
provided to DBC's enforcement program and may be used at DBC's
discretion to discipline the licensee.
8)Deems a licensee to have waived any rights granted by any law or
regulation relating to confidentiality under the program, if he or
she does any of the following:
a) Presents information relating to any aspect of the diversion
program during any stage of the disciplinary process subsequent
to the filing of an accusation, statement of issues, or petition
to compel an examination, as specified. States that this waiver
is limited to information necessary to verify or refute any
information disclosed by the licensee.
b) Files a lawsuit against DBC relating to any aspect of the
diversion program.
c) Claims in defense to a disciplinary action, based on a
complaint that led to the licensee's participation in the
diversion program, that he or she was prejudiced by the length of
time that passed between the alleged violation and the filing of
the accusation. States that this waiver is limited to
information necessary to document the length of time the licensee
participated in the diversion program.
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9)Makes other technical, nonsubstantive changes.
FISCAL EFFECT: According to the Assembly Appropriations Committee,
absorbable workload to DBC to continue oversight of the diversion
program for dental professionals.
COMMENTS:
1.Purpose. According to DBC, the Sponsor of this bill, this
legislation is necessary to allow for enhanced communication and
exchange of information between DBC's diversion and enforcement
programs. DBC points out that this bill amends statutes that govern
DBC's diversion program to allow for the sharing of diversion
information with DBC's enforcement program when a licensee
participating in the program is terminated for non-compliance while
on probation by DBC. DBC states that with the exception of when a
licensee presents a threat to the public's health and safety,
current law does not allow DBC's diversion program to notify its own
enforcement program when a licensee participating in diversion is
not in substantial compliance. The diversion program can only
provide the name of the terminated licensee and not any specifics as
to why the individual was terminated from the program. This
notification, DBC argues is necessary as the information obtained in
the diversion program could be used for subsequent disciplinary
action by DBC.
2.Background.
a) Diversion Program of the Dental Board of California. DBC
established its diversion program as a confidential program for
dentists and dental auxiliaries licensed in California whose
ability to practice may be impaired due to alcohol and/or drug
abuse. According to DBC's website, the diversion program offers
a means of recovery without the loss of license by providing
access to appropriate intervention programs and treatment
services. DBC has established DECs for northern and southern
California to assist it in evaluating licensees who may be
impaired due to the abuse of alcohol or drugs. DECs are composed
of three dentists, one dental auxiliary, one physician or
psychologist, and one public member who all have experience or
knowledge in the field of chemical dependency. Entry into the
diversion program may be through self-referral but most
participants enter the program because they are under
investigation by DBC and were referred by a program manager.
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Since 1983, the clinical management of the program has been done by
MAXIMUS, Inc. After an initial evaluation, individuals accept a
participation agreement and are regularly monitored in various
ways, including random drug testing to ensure compliance.
MAXIMUS provides the following services: medical advisors,
compliance monitors, case managers, urine testing system,
reporting, and record maintenance. The Board of Registered
Nursing, the Board of Pharmacy, the Physical Therapy Board of
California, the Veterinary Medical Board of California, the
Osteopathic Medical Board of California and the Physician
Assistant Committee also operate their own diversion programs and
use MAXIMUS to provide the treatment services. Although there
are certain tasks that are standardized for all the boards, such
as designing and implementing a case management system,
maintaining a 24-hour access line, and providing initial intake
and in-person assessments, the planning and execution of the
programs are tailored to each board according to their needs and
mandates. On June 30, 2008, the Medical Board of California's
Physician Diversion Program sunseted after the MBC voted
unanimously on July 26, 2007 to end the program because the MBC
has determined that it has become inconsistent with MBC's public
protection mission and policies.
b) Informational Hearings. The Senate Business, Professions, and
Economic Development Committee held informational hearings on the
PDP issue on June 11, 2007 and March 10, 2008. The June 11, 2007
hearing focused on the findings of the 2007 BSA audit. The March
10, 2008 hearing examined how the MBC and the other healthcare
licensing boards, including DBC, deal with licentiates with
substance abuse and drug addiction problems.
c) Substance Abuse Coordination Committee. SB 1441
(Ridley-Thomas, Chapter 548, Statutes of 2008) established within
the Department of Consumer Affairs (DCA) the Substance Abuse
Coordination Committee (SACC) to formulate by January 1, 2010,
uniform standards that will be used by healing arts boards in
dealing with substance-abusing licensees, requires the DCA to
conduct a thorough audit of the effectiveness, efficiency, and
overall performance of the vendor chosen by DCA to manage
diversion programs for substance-abusing licensees of health care
licensing boards. SB 1441 also required adoption of standards on
clinical diagnostic evaluation of licensees, requirements for the
temporary removal of the licensee from practice for clinical
diagnostic evaluation and any treatment, and criteria before
being permitted to return to practice on a full-time or part-time
basis, requirements on the ability of the licensing board to
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communicate with a licensee's employer about the licensee's
status and condition, drug testing, and criteria for a licensee
to return to practice and petition for reinstatement of a full
and unrestricted license. The SACC was formed earlier this year,
made up of the executive officers of DCA's healing arts boards.
Several stakeholder meetings were conducted, and SACC is in the
process of drafting proposed standards relating to the criteria
specified in SB 1441, and codified in Section 315 of the Business
and Professions Code.
3.Author's Amendments:
a) Section 1. The Author would like to delete all changes that
are in Section 1 of the bill which makes certain findings and
declarations on the intent of the DBC's diversion program. These
changes mischaracterized the purpose of DBC's diversion program.
b) Section 2 to Section 4. The Author would like to amend
Section 2 through Section 4 of this bill to clarify the role of
the DEC and the program manager as adopted in SB 1441
(Ridley-Thomas), Chapter 548, Statutes of 2008. Specifically, SB
1441 indicated that a DEC operates under the direction of the
program manager, and that the program manager has the primary
responsibility to review and evaluate recommendations of the
committee.
c) Section 5. The Author would like to amend Section 5 of the
bill to delete provisions that exempt a meeting that will be
convened entirely in closed session from the Bagley-Keene Open
Meeting Act's notice and disclosure requirements, and instead
indicate that the notice and disclosure requirements that apply
to a closed session meeting shall not include the name or
identity of any prospective or current diversion program
participant.
4.Suggested Amendments: As discussed above, SB 1441 (Ridley-Thomas,
Chapter 548, Statutes of 2008) established within DCA the Substance
Abuse Coordination Committee to formulate by January 1, 2010,
uniform standards that will be used by healing arts boards in
dealing with substance-abusing licensees. This bill should be
amended to indicate that the rules and regulations required by
Sections 1695.1, 1695.6 and 1697 shall be, at a minimum, consistent
with the uniform standards adopted pursuant to SB 1441 codified in
Section 315 of the Business and Professions Code .
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SUPPORT AND OPPOSITION:
Support:
Dental Board of California (Sponsor)
Opposition:
None on file as of June 22, 2009.
Consultant:Rosielyn Pulmano