BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 1172| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ UNFINISHED BUSINESS Bill No: SB 1172 Author: Negrete McLeod (D) Amended: 6/22/10 Vote: 21 SENATE BUS., PROF. & ECON. DEVEL. COMMITTEE : 7-1, 4/19/10 AYES: Negrete McLeod, Wyland, Aanestad, Calderon, Correa, Oropeza, Yee NOES: Walters NO VOTE RECORDED: Florez SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 SENATE FLOOR : 27-0, 5/28/10 AYES: Alquist, Ashburn, Calderon, Cedillo, Correa, DeSaulnier, Ducheny, Dutton, Florez, Hancock, Hollingsworth, Huff, Kehoe, Leno, Liu, Lowenthal, Negrete McLeod, Padilla, Pavley, Price, Romero, Simitian, Steinberg, Strickland, Wright, Wyland, Yee NO VOTE RECORDED: Aanestad, Cogdill, Corbett, Cox, Denham, Harman, Oropeza, Runner, Walters, Wiggins, Wolk, Vacancy, Vacancy ASSEMBLY FLOOR : 74-0, 8/16/10 - See last page for vote SUBJECT : Regulatory boards: diversion programs SOURCE : Author DIGEST : This bill requires a healing arts board of the CONTINUED SB 1172 Page 2 Department of Consumer Affairs 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, and allows a healing arts board to adopt regulations authorizing the board to order a licensee on probation or in a diversion program to cease practice for major violations and when the board orders a licensee to undergo a clinical diagnostic evaluation pursuant to uniform and specific standards, as specified. Assembly Amendments specify that the bill does not affect the Board of Registered Nursing, and delete provisions in the bill which prohibited a board from disclosing to the public that a licensee is participating in a diversion program unless that participation was ordered as a term of probation. ANALYSIS : Existing law 1. Establishes the Department of Consumer Affairs (DCA) which oversees boards and bureaus which license and regulate businesses and professions, including doctors, nurses, dentists, engineers, architects, contractors, cosmetologists and automotive repair facilities, to name a few. 2. Requires specified boards to establish criteria for the acceptance, denial or termination of licentiates in a diversion program. 3. Authorizes a healing arts board to deny, suspend, or revoke a licensee for specified acts. 4. Establishes within the DCA the Substance Abuse Coordination Committee (SACC) to develop uniform standards that will be used by healing arts boards in dealing with licensees with substance abuse problems. Specifies that the SACC shall be chaired by the DCA director and that executive officers from specified boards shall comprise the membership of the committee. 5. Requires the SACC to develop uniform standards in SB 1172 Page 3 specified areas for healing arts boards, whether or not they use a diversion program, by January 1, 2010. 6. Requires that individuals or entities contracting with the DCA or any board within the 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 until such time as these records and documents have been reviewed for audit by the department for a maximum of three years, as specified. 7. Requires all records and documents pertaining to services for the treatment and rehabilitation of licentiates impaired by alcohol or dangerous drugs provided by any contract vendor to the DCA or to any board to be kept confidential, and not subject to discovery or subpoena. 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 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 SB 1172 Page 4 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 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, and states that the order shall not constitute a disciplinary action. Background Healing Arts Boards Diversion Programs . The diversion programs that currently exist were modeled after the state's first diversion program for physicians and surgeons created at the Medical Board of California (MBC) in 1981, 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. This program was voluntary and applied only to those who have voluntarily requested diversion treatment and supervision. On June 30, 2008, the MBC's program sunsetted, after a series of audits by the Bureau of State Audits (BSA) and a report by an Enforcement Monitor which found inconsistent monitoring of physicians, and poor oversight by the MBC. While the MBC housed its diversion program, other healing arts boards outsource these functions. DCA currently manages a master contract with Maximus, a publicly traded corporation for six boards' and one committee's diversion program; the Board of Registered Nursing, the Dental Board of California, the Board of Pharmacy, the Physical Therapy Board of California, the Veterinary Medical Board, the Osteopathic Medical Board of California, and the Physician Assistant Committee. The individual boards oversee the programs but services are provided by Maximus. The board's diversion programs follow the same general principles as that of the MBC's program. Health practitioners with mental illnesses or substance abuse issues may be referred SB 1172 Page 5 in lieu of discipline or self-refer into the programs and receive help with 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. Failures of the Physician Diversion Program (PDP) . The BSA has audited the MBC diversion program four times between 1982 and 2007. In 2005, a legislatively created enforcement monitor also audited the MBC diversion. The enforcement monitor's audit indicated that "the Board's diversion program 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 MBC diversion program 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 MBC diversion program does not adequately ensure that it SB 1172 Page 6 receives required monitoring reports from its participants' treatment providers and work-site monitors. In addition, although the MBC diversion program 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 MBC diversion program 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 MBC diversion program currently does not 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 its diversion program, 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 SB 1172 Page 7 from enforcement in lieu of discipline, and for physicians who were directed into the program as part of a disciplinary order. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No SUPPORT : (Verified 8/17/10) Board of Behavioral Sciences Medical Board of California ARGUMENTS IN SUPPORT : The author's office is the sponsor of this bill. The author's office points out that pursuant to SB 1441 (Ridley-Thomas), Chapter 548, Statutes of 2008, the DCA was required to adopt uniform guidelines on sixteen specific standards that would apply to substance abusing health care licensees, regardless of whether a board has a diversion program. Although most of the adopted guidelines do not need additional statutes for implementation, there are a couple of 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 author's office points out that the protection of the public remains the top priority of boards when dealing with substance abusing licensees. ASSEMBLY FLOOR : AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill Berryhill, Tom Berryhill, Block, Blumenfield, Bradford, Brownley, Buchanan, Caballero, Carter, Chesbro, Conway, Cook, Coto, De La Torre, De Leon, DeVore, Eng, Evans, Feuer, Fletcher, Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani, Gatto, Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill, Huber, Huffman, Jeffries, Jones, Knight, Lieu, Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello, Nielsen, Norby, V. SB 1172 Page 8 Manuel Perez, Portantino, Ruskin, Salas, Saldana, Silva, Skinner, Smyth, Solorio, Audra Strickland, Swanson, Torlakson, Torres, Torrico, Tran, Villines, Yamada, John A. Perez NO VOTE RECORDED: Bass, Blakeslee, Charles Calderon, Davis, Garrick, Vacancy JJA:do 8/17/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****