BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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                              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





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          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  







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             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  







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             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  







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          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  







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          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  







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          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.  







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            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

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