BILL ANALYSIS
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|Hearing Date:July 6, 2009 |Bill No:AB |
| |526 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: AB 526Author:Fuentes
As Amended:June 1, 2009 Fiscal: Yes
SUBJECT: Public Protection and Physician Health Program Act of 2009.
SUMMARY: Establishes the Public Protection and Physician Health
Program Act of 2009 to create within the State and Consumer Services
Agency the Public Protection and Physician Health Committee, which
would, until January 1, 2021, assist physicians and surgeons who may
be impaired by alcohol or substance abuse or dependence or by a mental
disorder.
Existing law:
1)Provides for the licensure and regulation of physicians and surgeons
by the Medical Board of California (MBC) within the Medical
Practice Act.
2)Required MBC to oversee a diversion program for physicians and
surgeons with alcohol and substance abuse problems until June
30, 2008. (MBC is no longer responsible for a diversion
program.)
3)As part of the prior diversion program, MBC established diversion
evaluation committees (DECs) to identify and rehabilitate
physicians and surgeons with drug, alcohol abuse problems, or
mental illness or physical illness that affected their
competency to practice medicine, and provided for procedures and
criteria to be followed by the DECs for acceptance, denial or
termination of physicians and surgeons in the diversion program.
4)Specifies that it is the intent of the Legislature that the
Department of Consumer Affairs (DCA) conduct a thorough audit of
the effectiveness, efficiency, and overall performance of the
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vendor chosen by the DCA to manage diversion programs for
substance-abusing licensees of heath care licensing boards and
make recommendations regarding the continuation of the programs
to ensure that individuals participating in the programs are
appropriately monitored, and the public is protected from health
care practitioners who are impaired due to alcohol or drug abuse
or mental or physician illness.
5)Specifies that the audit shall identify whether licensees are
self-referred, board-referred or board-ordered, describe in
detail the type of diversion services provided, review several
critical areas and programs provided by the vendor, and also
recommend ways in which the DCA can more closely monitor the
vendor.
6)Establishes in the DCA the Substance Abuse Coordination Committee
(SAR Committee), comprised of executive officers of the DCA's
healing arts boards as specified below and a designee of the
State Department of Alcohol and Drug Programs.
7)Requires the SAR Committee to formulate, by January 1, 2010, uniform
and specific standards in specified areas that each healing arts
board shall use in dealing with substance-abusing licensees,
whether or not a board chooses to have a formal diversion
program.
8)Requires the following boards to establish criteria for the
acceptance, denial or termination of licentiates in a diversion
program: the Osteopathic Medical Board of California for
osteopathic physicians and surgeons; the Board of Registered
Nursing for registered nurses; the Board of Dental Examiners of
California for dentists; the Board of Pharmacy to operate a
recovery program for pharmacists or intern pharmacists; the
Physical Therapy Board of California for physical therapists;
the Veterinary Medical Board for veterinarians and registered
veterinary technicians; and, the Physician Assistant Committee
for physician assistants.
9)Establishes the Attorney Diversion and Assistance Act within the
State Bar of California to address the substance abuse and
mental health problems of attorneys who voluntarily participate
in the program.
10)Provides for the professional review of specified healing arts
licentiates by a peer review body, as defined, including a
medical or professional staff of any licensed health care
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facility or clinic, health care service plan, specified health
professional societies, or a committee organized by any entity
that functions as a body to review the quality of professional
care provided by specified health care practitioners.
11)Requires a report to be filed by a peer review body to an agency
having regulatory jurisdiction over healing arts licentiates if
a licentiate's application for staff privileges is denied or
rejected, has had his or her membership, staff privileges, or
employment terminated or revoked for medical disciplinary
reasons; or if restrictions are imposed, or voluntarily
accepted, on staff privileges, membership or employment for a
cumulative total of 30 days or more for any 12-month period, for
a medical disciplinary cause or reason (commonly referred to as
an 805 report pursuant to Section 805 of the Business and
Professions Code).
This bill:
1)Makes Legislative findings and declarations regarding the protection
of the public from harm by physicians and surgeons who may be
impaired by alcohol or substance abuse or dependence or by a mental
disorder and how it is in the best interests of the public to
provide a pathway to recovery for any licensed physician who is
currently suffering from this type of impairment or by a mental
disorder. Also finds and declares that nearly every state has a
physician health program and that since 2007, California has been
without such a program and that it is essential for the public
interest to have such a program that will focus on early
intervention, assessment, referral to treatment, and monitoring of
physicians and surgeons with significant health impairments that may
impact their ability to practice safely. However, such a program
need not and should not necessarily divert physicians and surgeons
from the disciplinary system, but instead focus on providing
assistance before any harm to a patient has occurred.
2)Defines, among others, the following terms:
a) "Impaired" or "impairment " means the inability to practice
medicine with reasonable skill and safety to patients by reasons
of alcohol abuse, substance abuse, alcohol dependency, any other
substance dependency, or a mental disorder.
b) "Qualifying illness" means "alcohol or substance abuse,"
"alcohol or chemical dependency," or a "mental disorder," as
those terms are used in the Diagnostic and Statistical Manual of
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Mental Disorders, Fourth Edition or subsequent editions.
c) "Physician health program" or "program" means the program for
the prevention, detection, intervention, monitoring, and referral
to treatment of impaired physicians and surgeons, and includes
vendors, providers, or entities contracted with by the State and
Consumer Services Agency.
d) "Treatment program" or "treatment" means the delivery of care
and rehabilitation services provided by an organization or
persons authorized by law to provide those services.
3)Enacts the Public Protection and Physician Health Program Act of
2009 (PPPHP Act), which would, until January 1, 2021, establish
within the State and Consumer Services Agency (SCS Agency) the
Public Protection and Physician Health Committee (PPPH Committee),
consisting or 14 members. Requires the PPPH Committee to be
appointed and to hold its first meeting by March 1, 2010.
4)Specifies that the 14 members of the PPPH Committee shall be
appointed as follows:
a) Two members who are licensed mental health professionals with
knowledge and expertise in the identification and treatment of
substance abuse and mental disorders.
b) Six members who are physicians and surgeons, as specified,
with knowledge and expertise in the identification and treatment
of alcohol dependence and substance abuse.
c) Four members of the public appointed by the Governor, at least
one of whom shall have experience in advocating on behalf of
consumers of medical care in this state.
d) One public member each appointed by the Speaker of the
Assembly and the Senate Committee on Rules.
5)Provides who may sit on the PPPH Committee as a public member
(conflicts of interest).
6)Provides that members of the PPPH Committee shall serve without
compensation, but receive reimbursement for any travel expenses and
shall serve terms of four years, and may be reappointed.
7) Requires the PPPH Committee to prepare and adopt rules and
regulations that provide clear guidance and measurable outcomes to
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ensure patient safety and the health and wellness of physicians and
surgeons by June 30, 2010. These rules and regulations shall
include a number of standards and requirements for referral to
treatment and participation in a physician health program and for
the vendor who provides a physician health program including
auditing requirements of the program
8)Requires on or after July 1, 2010, for the PPPH Committee to
recommend one or more
non-profit physician health programs to the SCS Agency, and permits
the SCS Agency to contract with the recommended physician health
program.
9)Requires that the chief executive officer of the physician health
program to have expertise in the areas of alcohol abuse, substance
abuse, alcohol dependency, other chemical dependencies and mental
disorder, and requires the physician health program under contract
to do the following:
a) Meet the minimum standards and requirements as specified and
comply with all the rules and regulations as adopted.
b) Report annually to the PPPH Committee statistics as specified
on physician and surgeon participation in the program.
c) Agree to submit to periodic audits and inspections of all
operations, records, and management related to the program to
ensure compliance with the requirements of the PPPHP Act and its
implementing rules and regulations.
10)Requires the SCS Agency, in conjunction with the PPPH Committee, to
monitor compliance of the physician health program under contract,
including making periodic inspections and onsite visits.
11)Specifies that the SCS Agency has the sole discretion to contract
with a physician health program for licensees of MBC and no
provision of the PPPHP Act may be construed to entitle any physician
and surgeon to the creation or designation of a physician health
program for any individual qualifying illness or group of qualifying
illness.
12)Permits a physician and surgeon to enter into a voluntary agreement
with a physician health program which must include a jointly agreed
upon treatment program and mandatory conditions and procedures to
monitor compliance with the treatment program.
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13)Provides that a physician and surgeon's voluntary participation in
a physician health program to be confidential unless waived by the
physician and surgeon or otherwise specified in the PPPHP Act.
14)Prohibits any voluntary agreement from being considered a
disciplinary action or order by MBC, prohibits the agreement from
being disclosed to MBC, and states that such agreement shall not be
public information if all of the following are true:
a) The voluntary agreement is the result of the physician and
surgeon self-enrolling or voluntarily participating in the
physician health program.
b) MBC has not referred a complaint against the physician and
surgeon to a district office of MBC for investigation for conduct
involving or alleging an impairment adversely affecting the care
and treatment of patients.
c) The physician and surgeon is in compliance with the treatment
program and the conditions and procedures to monitor compliance.
15)Requires each participant, prior to entering into a voluntary
agreement, to disclose to the PPPH Committee whether he or she is
under investigation by MBC. If a participant fails to disclose such
an investigation, upon enrollment or at any time while a
participant, the participant shall be terminated from the program.
However, allows a participant who is under investigation with MBC,
and who discloses that they are under investigation, to enter into a
voluntary agreement with the physician health program.
16)Requires the PPPH Committee to regularly monitor recent accusations
filed against physicians and surgeons and to compare the names of
physicians and surgeons subject to accusation with the names of
program participants.
17)Provides that if a participant enters into a voluntary agreement
with the physician health program, the physician health program
shall do both of the following:
a) In addition to complying with any other duty imposed by law,
report to the PPPH Committee the name of and results of any
contact or information received regarding a physician and surgeon
who is suspected of being, or is impaired and, as a result, whose
competence or professional conduct is reasonably likely to be
detrimental to patient safety or to the delivery of patient care.
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b) Report to the PPPH Committee if the physician and surgeon
fails to cooperate with any of the requirements of the physician
health program, fails to cease practice when required, fails to
submit to evaluation, treatment, or biological fluid testing when
required, or whose impairment is not substantially alleviated
through treatment, or who, in the opinion of the physician health
program, is unable to practice medicine with reasonable skill and
safety, or who withdraws or is terminated from the physician
health program prior to completion.
18)Requires that within 48 hours of receiving a report pursuant item
#16 above, the PPPH Committee shall make a determination as to
whether the competence or professional conduct of the physician and
surgeon is reasonably likely to be detrimental to patient safety or
to the delivery of patient care, and, if so, refer the matter to MBC
consistent with rules and regulations adopted by the SCS Agency.
Upon receiving a referral from the PPPH Committee, MBC shall take
immediate action and may initiate proceedings to seek a temporary
restraining order or interim suspension order as provided under law.
19)Provides that any oral or written information reported to MBC, as
specified, shall remain confidential unless MBC has referred a
complaint against the physician and surgeon for investigation for
conduct involving or alleging an impairment adversely affecting the
care and treatment of patients.
20)Provides that nothing prohibits, requires, or otherwise affects the
discovery or admissibility of evidence in an action against a
physician and surgeon based on acts or omissions within the course
and scope of his or her practice.
21)Provides that any information received, developed, or maintained by
the SCS Agency regarding a physician and surgeon in the program
shall not be used for any other purpose.
22)Requires the PPPH Committee to report to the SCS Agency and the
Legislature statistics, as specified, that are received from the
physician health program.
23)Requires a physician and surgeon participating in a voluntary
agreement to be responsible for all expenses relating to chemical or
biological fluid testing, treatment, and recovery as provided in the
written agreement between the physician and surgeon and the
physician health program.
24)Provides that in addition to the fees charged for the initial
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issuance or biennial renewal of a physician and surgeon's
certificate to practice, and at the time those fees are charged, MBC
shall include a surcharge of not less that twenty-two dollars ($22)
or an amount equal to 2.5 percent of the fees currently set by MBC,
whichever is greater, and which shall be expended solely for the
purpose of implementing the PPPHP Act.
25)Provides that the fee charged pursuant to item #24 above, may be
separately identified on the fee statement provided to physicians
and surgeons and that MBC may include a conspicuous statement
indicating that the PPPHP is not a program of MBC and the collection
of this fee does not, nor shall it be construed to, constitute MBC's
endorsement of, support for, control of, or affiliation with, the
program.
26)Requires the SCS Agency to biennially contract to perform a
thorough audit, as specified, of the effectiveness, efficiency, and
overall performance of the program and its vendors and for the audit
to make recommendations regarding the continuation of this program
and to suggest any changes.
FISCAL EFFECT: According to the Assembly Appropriations Committee
analysis, dated May 20, 2009, annual fee-supported special fund costs
of $1.3 million to the State and Consumer Services Agency. Although
this bill requires MBC to increase licensing fees by at least $22,
this figure is larger than the fee increase limit set in the bill of
2.5% of the annual licensing fee ($790), or $19.75. This drafting
error should be corrected to make the fee language function as
intended. (The drafting error regarding the fees to be charged by MBC
was corrected in the June 1, 2009 amended version.)
COMMENTS:
1.Purpose. The California Medical Association and the California
Academy of Family Physicians are Co-Sponsors of this measure.
According to the Author, upon the sunset of MBC diversion program,
there will be no public program that provides a path for physicians
to receive treatment and monitoring for substance abuse or mental
illnesses that may impair their ability to practice medicine safely.
Without such a program, physicians are more likely to hide these
problems until they pose a risk of harm to patients.
As stated by the Author, this measure establishes the Public
Protection and Physician Health Program (PPPH Program) within the
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State Consumer Services Agency. The program will provide a path for
physicians to obtain treatment and monitoring for mental illness or
substance abuse, strengthening efforts to identify physicians with
problems before they pose a risk to patients. A Public Protection
and Physician Health Committee of public members and health
professionals with expertise in the areas of mental illness and
substance abuse will oversee the program. The Governor, the
Legislature, and the Secretary of the State and Consumer Services
Agency will appoint the members of the Committee. The program will
be tasked with protecting the public through prevention, early
identification, and education about behavioral disorders, including
psychiatric, substance abuse, and other medical conditions. The
PPPH Program will ensure consistent and effective monitoring of
physicians' compliance with program requirements. The PPPH Program
will receive voluntary self referrals from California licensed
physicians, and enter into agreements with private entities for
essential services such as body fluid collection and testing
services, with hospital well-being committees, and with work-site
monitors.
The Author further states that the program will be required to submit
to regular independent audits and to report on the operation of the
program. The PPPH Program is not a diversion program. Any
physician with a substance abuse problem who causes harm to patients
or is otherwise subject to discipline by MBC will continue to be
subject to discipline. Nothing in this bill requires that they be
diverted from discipline in any way. In fact, if a participant in
the program must agree that if he or she fails to comply with
program requirements and is determined to be a threat to patient
safety, he or she will be reported to MBC.
2.Background.
a. Physician Diversion Program (PDP). MBC's PDP was created in
1980 to rehabilitate doctors with mental illness and substance
abuse problems without endangering public health and safety.
Under this concept, physicians who abuse drugs and/or alcohol or
who are mentally or physically ill may be "diverted" from the
disciplinary track into a program that monitors their compliance
with terms and conditions of a contract that is aimed at ensuring
their recovery.
The PDP was a voluntary program and only those physicians and
surgeons who voluntarily requested diversion treatment and
supervision could participate in the program. A physician could
enter the diversion program in any of the following ways: a)
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self-referral; b) referral by the Enforcement Unit of MBC in lieu
of discipline; or c) directed as part of a disciplinary order.
Confidentiality was required for physicians and doctors that
self-refer and could be granted to those who were referred by MBC
(doctors could avoid public discipline if there was no evidence
of patient harm and they successfully completed the program).
For those who were directed to the program as part of a
disciplinary order, disciplinary actions are public records and
the practice violation that triggered MBC's involvement would be
reflected in the doctor's public file. Any physician and surgeon
terminated from the PDP for failure to comply with program
requirements was subject to a disciplinary action for acts
committed before, after or during participation in the PDP, and a
physician that successfully completed the PDP was not subject to
any disciplinary action for any alleged violation that resulted
in referral to the PDP. The PDP monitored participants'
attendance at group meetings, facilitated random drug testing,
and required reports from work-site monitors and treatment
providers. The PDP sunsetted on June 30, 2008 .
b. Audits of the Physician Diversion Program (PDP). The BSA has
audited the PDP four times between 1982 and 2007. In 2005, a
legislatively created enforcement monitor also audited the PDP.
The enforcement monitor's audit indicated that "the Board's PDP
is significantly flawed; its most important monitoring mechanisms
are failing, it is chronically understaffed, and it exposes
patients to unacceptable risks posed by physicians who abuse
drugs and alcohol." The 2007 BSA audit concluded, "Although the
PDP has made many improvements since the release of the November
2005 report of the enforcement monitor, there are still some
areas in which the program must improve in order to adequately
protect the public." BSA points out the following: Although
case managers appear to be contacting participants on a regular
basis and participants appear to be attending group meetings and
completing the required amount of drug tests, the PDP does not
adequately ensure that it receives required monitoring reports
from its participants' treatment providers and work-site
monitors. In addition, although the PDP has reduced the amount
of time it takes to admit new participants into the program and
begin drug testing, it does not always respond to potential
relapses in a timely and adequate manner. Specifically, the PDP
has not always required a physician to immediately stop
practicing medicine after testing positive for alcohol or a
non-prescribed or prohibited drug. Further, of the drug tests
scheduled in June and October 2006, 26% were not performed as
randomly scheduled. Additionally, the PDP currently does not
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have an effective process for reconciling its scheduled drug
tests with the actual drug tests performed and does not formally
evaluate its collectors, group facilitators, and diversion
evaluation committee members to determine whether they are
meeting program standards. Finally, the BSA indicates that MBC
has not provided consistently effective oversight.
In recognition that patient safety cannot continue to be
compromised, MBC voted unanimously on July 26, 2007 to end the
PDP, declaring in its motion that "in light of MBC's primary
mission of consumer protection and as the regulatory agency
charged with the licensing of physicians and surgeons and
enforcement of the Medical Practice Act, MBC hereby determines it
is inconsistent with MBC's public protection mission and policies
to operate a diversion program." This declaration prompted MBC
to approve a Diversion Transition Plan (DTP) on November 2, 2007
to accommodate the 203 physicians already in the program. The
DTP split the participants in two categories; those with at least
three years of sobriety and those without. For those with at
least three years of sobriety, participants will be evaluated by
a Diversion Evaluation Committee (DEC), and if the DEC recommends
and the DTP's administrator approves, the individual will be
deemed to have successfully completed the program and discharged.
For those with less than three years of sobriety, participants
would receive a letter to "highly encourage" them to seek
entrance into another monitoring or treatment program to assist
them in maintaining sobriety. MBC has also articulated a policy
in the DTP to deal with physicians who were referred into the
diversion program from enforcement in lieu of discipline, and for
physicians who were directed into the program as part of a
disciplinary order.
c. Other Health Provider Diversion Programs. While MBC houses
its diversion program, other boards outsource these functions.
DCA currently manages a master contract with MAXIMUS, Inc.
(MAXIMUS), a publicly traded corporation for six boards' and one
committee's diversion programs: the Board of Registered Nursing,
the Dental Board of California, 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. The individual boards
oversee the programs, but services are provided by MAXIMUS. The
boards' diversion programs follow the same general principles of
MBC's PDP. Health practitioners with mental illnesses or
substance abuse issues may be referred in lieu of discipline or
self-refer into the programs and receive help with
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rehabilitation. 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 that MBC kept in-house:
medical advisors, compliance monitors, case managers, urine
testing system, reporting, and record maintenance. DCA's master
contract standardizes certain tasks, such as designing and
implementing a case management system, maintaining a 24-hour
access line, and providing initial intake and in-person
assessments, but the planning and execution of the programs are
tailored to each board according to their needs and mandates.
Each board specifies its own policies and procedures. MAXIMUS
generally has a less hands-on approach to managing the diversion
programs than MBC attempted. MAXIMUS reports that caseloads
range from 100 to 200 per clinical case management team. MAXIMUS
also limits its in-person resources; for example, in the program
design for the Board of Registered Nursing, MAXIMUS specifies
that they will conduct in-person reassessments by telephone
unless otherwise requested by the Board. Also, the contractor
performs unobserved, as well as observed, drug screening.
d. 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 MBC and the other healthcare
licensing boards deal with licentiates with substance abuse and
drug addiction problems.
e. Prior Similar Legislation. AB 214 (Fuentes) of 2008, which
would have created the Public Protection and Physician Health
Program Act of 2008 under the State Department of Public Health
is almost identical to this measure. The Governor vetoed this
bill and in his veto message stated that it is inappropriate to
separate the program from MBC because it is critical that the
licensing agency be directly involved in monitoring participation
in the diversion program to protect patients and enable timely
enforcement actions.
3.Committee Fee Bill Worksheet for AB 214 (Fuentes). Included with
this analysis is a Fee Background Information Questionnaire which is
to be completed by the Author's Office and the board requesting a
fee increase. This Questionnaire is required by the Committee to
justify any fee increases and provide background information on
requested fee increases by the boards under DCA. The Questionnaire
is to include fund condition statements displaying five years of
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actual and five years of projected expenditures and revenues with
(a) current statutory maximum fee amounts and (b) proposed statutory
maximum fee amounts. It must also include a schedule of fee revenue
by various fee "categories" displaying five years of actual and five
years of projected revenue based on (a) current fees and (b)
proposed fees and includes the workload (e.g., number of licensees)
and fee charged per category. It is to provide a schedule
displaying two years of expenditures by program components; such as
application review, examination, enforcement, administration and
other licensing activities for each licensing category. It is to
provide a table of comparison of existing and proposed fees which
includes the percentage by which the fee will change. Lastly, it
should provide the history for the past 10 years of legislative fee
increase authorizations.
The worksheet submitted by the Author was for AB 214 of 2008, which is
basically an identical request for a fee increase to operate this
program. The worksheet indicates that most of the information
required by the Questionnaire is not available because the fee
relates to a new program and is restricted to only the physician
health program created by the bill. The worksheet suggests that MBC
may have more complete information. The worksheet states that the
bill would continue a fee previously charged for the initial or
renewal licensing fee of physicians and surgeons. The fee would be
not less than $22, or an amount equal to 2.5 percent of the fee set
by MBC, which ever is greater.
The Author stated in AB 214: "These funds can be continued to fund
the new program since the state will now be contracting with private
sector vendors who will be expected to operate within the guidelines
established and within the budget for this program. Since the state
will be contracting with non-profit organizations, they will also
have the capacity to raise private donations if needed to
effectively carry out their contract obligations."
It is still unclear whether the fees charged and the revenues provided
to operate this program will be sufficient to cover the expenses of
this program since there has been little cost analysis provided .
4.Previous Legislation. SB 1441 (Ridley-Thomas, Chapter 548, Statutes
of 2008) establishes in the Department of Consumer Affairs (DCA) the
Substance Abuse Coordination Committee, which would be comprised of
the executive officers of DCA's healing arts licensing boards, as
specified, to formulate no later than January 1, 2010 uniform and
specific standards relating to substance-abusing licensees. SB 1441
also specifies that the program managers of the diversion programs
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of specified boards are responsible for certain duties previously
assigned to the diversion evaluation committees under those
programs, and provides that diversion evaluation committees created
by any of the specified boards or committees operate in an advisory
role to the program manager of the diversion program.
AB 2443 (Nakanishi) required MBC to establish a program to promote the
issues concerning physician and surgeon well-being and would have
required the program to include, among other things, an examination
and evaluation of existing wellness education for medical students,
postgraduate trainees, and licensed physicians and surgeons and an
outreach effort to promote physician and surgeon wellness. The bill
would have required the program to be developed within existing
resources of MBC. AB 2443 was vetoed by the Governor and in his
veto message stated that while this bill is well-intentioned, it
detracts from the mission and purposed of MBC. MBC should be
focused on successfully implementing its current licensure,
regulatory and enforcement activities before attempting to offer new
programs outside its highest priority - protecting the health and
safety of consumers.
SB 761 (Ridley-Thomas, 2007), which died in the Assembly
Appropriations Committee, would have extended the sunset date of the
Physician Diversion Program to July 1, 2010.
SB 231 (Figueroa, Chapter 674, Statutes of 2005), had various
provisions relating to MBC and specifically established a January 1,
2009 sunset date for the Diversion Program.
5.Arguments in Support. The California Medical Association (CMA)
is the Sponsor of this measure. The CMA states that the need
for this bill comes from the decision of MBC to terminate its
diversion program on June 30, 2008. Because of that decision,
California will be one of three states without a program
designed to encourage physicians to come forward and deal with
potential problems. However, as indicated by CMA, this bill is
significantly different from the former MBC program. Unlike
MBC's Diversion Program, the Public Protection and Physician
Health Program (PPPHP) created by this bill does not divert or
defer physicians from any enforcement by MBC. Instead, it is
designed to encourage physicians to come forward voluntarily to
get the treatment and monitoring they need to practice safely.
The PPPHP is not an alternative to discipline and all current
laws leading to physician discipline are maintained.
In fact, as stated by the CMA, the PPPHP will have an affirmative
duty to inform MBC when a physician participant does not comply
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with program components. Upon entry to the program, the
physician participant must sign an agreement to follow an
immediate stop practice order issued by the PPPHP. Further, the
PPPHP must submit to regular and independent audits to ensure
clinical quality, fiscal integrity, and compliance with
appropriate monitoring and reporting requirements, and that the
PPPHP is fulfilling its mandate for patient protection.
According to the CMA, physicians of California will continue to
fund the oversight Committee and the PPPHP through licensing
fees, as they did with the former MBC program. However, each
individual participant will be required to pay any treatment,
monitoring, and testing costs. There will be no cost to the
General Fund.
CMA argues that the physicians of California feel that the
existence of this type of program is necessary for patient
protection and for the profession of medicine. It is essential
that a state the size of California with such a complicated
health care delivery system have a program to encourage
physicians to come forward and not hide potential addiction and
mental illness. "Without this program, California will not have
any program offering such a path to treatment. Without this
program, physicians with these diseases will be forced to hide
their problems, increasing the risk of harm to patients."
The California Academy of Family Physicians (CAFP) are co-sponsors
of this measure and indicate that this bill is needed because
the original diversion program of MBC has ended with no other
program to replace it, and that California is only one of only
three states that have no program. CAFP argues that unless this
bill passes, there will be no public program that provides a
pathway for physicians to receive treatment monitoring for
substance abuse or mental illness that may impair their ability
to practice medicine safely, and that without such a program,
physicians are more likely to hide these problems until they
pose a risk of harm to patients.
The California Psychiatric Association (CPA) indicates that this
measure is a joint effort of CPA, CMA and the California Society
for Addiction Medicine, as well as the California Hospital
Association and Kaiser Permanente; all of which have worked for
nearly two years to research and develop the concept and detail
for a new PPPHP. CPA argues that California has a huge public
interest, a statewide fiscal interest and an abiding social
interest in ensuring there are physicians ready, willing, and
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particularly able, to provide competent and safe treatment and
services. This measure ensures that.
6.Arguments in Opposition. The California Department of Consumer
Affairs (DCA) is opposed to this measure and believes that this
bill is premature at this time. The DCA indicates that they
have convened a Substance Abuse Coordinator Committee (SACC),
and is now in the process of developing uniform standards for
dealing with substance-abusing licensees, and argues that new
programs, such as that proposed by this bill, should not be
established until the SACC has been given time to complete its
statutory obligations.
The Medical Board of California (MBC) has taken an oppose
position. The MBC argues that by collecting the money to fund
this program, there would be a perception that the Board is
supporting the program. The MBC voted to sunset the concept and
end it's involvement and support of a physician impairment
program in 2007. This bill would require that the MBC
participate in the issue of substance abuse within the physician
population. The MBC feels this would create conflict and
negative perception of the MBC's mission of consumer protection.
MAXIMUS, Inc. (MAXIMUS) is opposed to this measure and indicates
that they have had substantial experience administering alcohol
and drug diversion programs on behalf of many government
entities, including seven health professional licensing boards
under DCA, and that their principle concern with this bill is
that it places in a single, specified entity responsibility for
administration and oversight of the Physician Health Program
(PHP). Thus, this bill would have a privately controlled entity
to accept enrollees into the PHP, establish the required
treatment program, monitor compliance, and make the
determination when an enrollee has failed to comply. Only then
would the PHP report to the Physician Health Committee which
would have to make its own determination that patient safety is
at risk before being required to report to a public entity, the
Medical Board. MAXIMUS argues that experience demonstrates that
the interests of physicians, patients and the public are best
protected if those functions are split, and a different vendor
either administers or oversees the clinical services and reports
program compliance, successes or failures to the licensing
entity; in this case MBC. Even more disturbing for MAXIMUS than
the organizational structure of the PHP is the language which
appears to describe a particular entity, and its chief executive
officer, that would be selected to administer the PHP.
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"Dictating in statute who should administer, oversee and treat
restricts the State from obtaining the most qualified,
competitive provider." This measure only allows for a
non-profit corporation thus preventing other competitive
for-profit programs from participating in contracting with the
State Consumer Services Agency.
SUPPORT AND OPPOSITION:
Support:
California Medical Association (Co-Sponsor)
California Academy of Family Physicians (Co-Sponsor)
American College of Obstetricians and Gynecologists
California Society of Addition Medicine
California Psychiatric Association
Drug Policy Alliance
Opposition:
California Department of Consumer Affairs
MAXIMUS, Inc.
Consultant:Bill Gage