BILL ANALYSIS SB 1172 Page 1 Date of Hearing: June 29, 2010 ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER PROTECTION Mary Hayashi, Chair SB 1172 (Negrete McLeod) - As Amended: June 22, 2010 SENATE VOTE : 27-0 SUBJECT : Regulatory boards: diversion programs. SUMMARY : Limits the retention requirements on records for the treatment and rehabilitation of substance-abusing licentiates, authorizes specified healing arts boards to order a licensee to cease practice due to a major violation or if the licensee has been ordered to undergo a clinical diagnostic evaluation, and orders specified healing arts boards to order a licensee to cease practice if the licensee tests positive for any substance that is prohibited under the terms of the licensee's probation or diversion program. Specifically, this bill : 1)Limits the retention requirement to three years for all records and documents pertaining to the treatment and rehabilitation of licentiates impaired by alcohol or dangerous drugs by individuals or entities contracting with the Department of Consumer Affairs (DCA) or any board within DCA for the provision of such services. 2)Relaxes the confidentiality requirement on records and documents pertaining to services for the treatment and rehabilitation of licentiates impaired by alcohol or dangerous drugs, stating that they must be kept confidential and are not subject to discovery or subpoena, unless otherwise expressly provided by statute or regulation. 3)Requires a healing arts board, except the Board of Registered Nursing (BRN), to order a licensee of the board to cease practice if the licensee tests positive for any substance that is prohibited under the terms of the licensee's probation or diversion program; 4)Permits a healing arts board, except BRN, to adopt regulations authorizing the board to order a licensee on probation or in a diversion program to cease practice due to a major violation or if the licensee has been ordered to undergo a clinical SB 1172 Page 2 diagnostic evaluation pursuant to uniform and specific standards, as specified. 5)Prohibits an order to cease practice pursuant to this bill from being governed by the Administrative Procedures Act (APA), and states that the order shall not constitute a disciplinary action. EXISTING LAW : 1)Provides for the regulation of specified professions and vocations by various boards, as defined, within DCA. 2)Requires individuals or entities contracting with DCA or any board within DCA for the provision of services relating to the treatment and rehabilitation of licentiates impaired by alcohol or dangerous drugs to retain all records and documents pertaining to those services for three years or until they are audited, whichever occurs first. Under existing law, those records and documents are required to be kept confidential and are not subject to discovery or subpoena. 3)Provides for the licensure and regulation of various healing arts by boards within DCA. These boards are authorized to issue, deny, suspend, and revoke licenses based on various grounds and to take disciplinary action against their licensees. 4)Establishes diversion and recovery programs to identify and rehabilitate dentists, osteopathic physicians and surgeons, physical therapists, physical therapy assistants, registered nurses, physician assistants, pharmacists and intern pharmacists, veterinarians, and registered veterinary technicians whose competency may be impaired due to, among other things, alcohol and drug abuse. FISCAL EFFECT : Unknown COMMENTS : Purpose of this bill . According to the author's office, "Pursuant to SB 1441 (Ridley-Thomas), Chapter 548, Statutes of 2008, DCA was required to adopt uniform guidelines on 16 specific standards that would apply to substance abusing health care licensees, regardless of whether a board has a diversion SB 1172 Page 3 program. "Although most of the adopted guidelines do not need additional statutes for implementation, there are a few changes that must be statutorily adopted to fully implement these standards. "This bill seeks to provide the statutory authority to allow boards to order a licensee to cease practice if the licensee tests positive for any substance that is prohibited under the terms of the licensee's probation or diversion program, if a major violation is committed and while undergoing clinical diagnostic evaluation. "The ability of a board to order a licensee to cease practice under these circumstances provides a delicate balance to the inherent confidentiality of diversion programs. The protection of the public remains the top priority of boards when dealing with substance abusing licensees." Background . Currently, each healing arts board adopts its own standards and requirements for substance abusing licensees. SB 1441 (Ridley-Thomas), Chapter 548, Statutes of 2008 established the Substance Abuse Coordination Committee (Committee) within DCA. The Committee was tasked with formulating, by January 1, 2010, uniform standards to be used by healing arts boards in dealing with substance-abusing licensees. These 16 standards include: requirements for 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; all aspects of drug testing; whether inpatient, outpatient, or other type of treatment is necessary; worksite monitoring requirements and standards; consequences for major and minor violations; and criteria for a licensee to return to practice and petition for reinstatement of a full and unrestricted license. On March 3, 2009, the Committee conducted it first public hearing and agreed to draft uniform guidelines for each of the standards. In December 2009, DCA adopted uniform guidelines for each of the standards required by SB 1441. This bill will provide the additional statutory authority necessary to implement some of these uniform standards dealing with serious reasons for the licensee to cease practice. SB 1172 Page 4 Specifically, this bill requires a healing arts board to order a licensee to cease practice if they test positive for any prohibited substance during their probation, while participating in a diversion program, or when a licensee undergoes a clinical diagnostic evaluation. The author's office argues that adherence to the APA is unnecessary because "the licensees who enter a diversion program have chosen freely to enter the program in exchange for the boards pursuing disciplinary actions against them. Similarly, licensees who are on probation have agreed to the terms of their provisions and are fully aware of the consequences of failure to abide by their probation agreements." Previous legislation . SB 1441 (Ridley-Thomas), Chapter 548, Statutes of 2008, established the Committee within DCA to develop uniform standards and controls for programs dealing with licensees with substance abuse problems. REGISTERED SUPPORT / OPPOSITION : Support None on file. Opposition None on file. Analysis Prepared by : Sarah Weaver / B.,P. & C.P. / (916) 319-3301