BILL ANALYSIS Ó
SB 1483
Page 1
Date of Hearing: June 26, 2012
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Mary Hayashi, Chair
SB 1483 (Steinberg) - As Amended: May 29, 2012
SENATE VOTE : 36-2
SUBJECT : Physicians and surgeons.
SUMMARY : Creates the Physician Health, Awareness, and
Monitoring Quality Act (PHAMQ Act) and establishes the Physician
Health Program (PHP), which is a referral and monitoring program
for physicians, medical students, and medical residents seeking
treatment for alcohol or substance abuse, a mental disorder, or
other health conditions, as specified. Specifically, this bill :
1)Requires the PHP to do all of the following:
a) Subject to specified participation requirements, be
available to all physicians and surgeons, as defined;
b) Promote awareness among members of the medical community
on the recognition of health issues that could interfere
with safe practice;
c) Educate the medical community on the benefits of and
options available for early intervention to address those
health issues;
d) Refer physicians and surgeons to monitoring programs
certified by the PHP by executing a written agreement with
the participant and monitoring the compliance of the
participant with that agreement; and,
e) Provide for the confidential participation by physicians
and surgeons who have a qualifying illness and who are not
on probation with the Medical Board of California (MBC).
2)Establishes within the Department of Consumer Affairs (DCA)
the Physician Health, Awareness, and Monitoring Quality
Oversight Committee (Oversight Committee), vests it with the
duties and responsibilities set forth in this bill, and allows
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it to take any reasonable administrative actions to carry out
those responsibilities and duties, including, but not limited
to, hiring staff and entering into contracts.
3)Requires the Oversight Committee to be formed no later than
April 1, 2013, and to have the following members:
a) Eight licensed physicians and surgeons appointed by the
Governor who have education, training, and experience in
the identification and treatment of substance use or mental
disorders, or both, including: two members recommended by a
statewide association representing psychiatrists with at
least 3,000 members; two members recommended by a statewide
association representing addiction medicine specialists
with at least 300 members; three members recommended by a
statewide association representing physicians and surgeons
from all specialties, modes of practice, and practice
settings with at least 25,000 members; and, one member
recommended by a statewide hospital association
representing at least 400 hospitals. Initial appointments
have staggered terms of two, three or four years, as
specified;
b) Six public members who have experience in a field
related to mental illness, or alcohol or substance abuse,
or both, and meet current law requirements for public
members of DCA boards. Four members are to be appointed by
the Governor, one is to be appointed by the Speaker of the
Assembly, and one is to be appointed by the Senate
Committee on Rules, with initial appointments of staggered
terms, as specified. Public members may not be:
i) A current or former physician and surgeon or an
immediate family member of a physician and surgeon;
ii) A current or former employee of a physician and
surgeon, or a business providing or arranging for
physician and surgeon services, or having any financial
interest in the business of a physician and surgeon;
iii) An employee or agent or representative of any
organization representing physicians and surgeons; or,
iv) An individual or an affiliate of an organization who
has conducted business with or regularly appeared before
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the MBC.
4)Provides that the Oversight Committee members serve without
compensation, serve four-year terms except as specified, and
may be reappointed, and that the Oversight Committee shall be
subject to the Bagley-Keene Open Meeting Act, the
Administrative Procedure Act, and the California Public
Records Act.
5)Requires the rules adopted by the Oversight Committee to be
consistent with the Uniform Standards Regarding
Substance-Abusing Healing Arts Licensees (Uniform Standards)
as adopted by the Substance Abuse Coordination Committee
(SACC) of DCA, the guidelines of the Federation of State
Physician Health Programs, Inc., (FSPHPs) as well as community
standards of practice, as specified.
6)Requires DCA to select a contractor for the PHP pursuant to a
request for proposals, and requires the Oversight Committee to
contract for a five-year term with that entity. The process
for procuring the services for the PHP shall be administered
by DCA pursuant to law governing state agency contracting for
services within the Public Contract Code. However, the
Oversight Committee shall serve as the evaluation body for the
procurement.
7)Requires the chief executive officer of the PHP vendor to have
expertise in the areas of substance or alcohol abuse, and
mental disorders in health care professionals.
8)Requires the PHP vendor to have a medical director to oversee
clinical aspects of the PHP's operations, and requires the
medical director to have expertise in the diagnosis and
treatment of alcohol and substance abuse and mental disorders
in health care professionals.
9)Requires the PHP vendor to have established relationships with
local medical societies and hospital well-being committees for
conducting education, outreach, and referrals for physician
and surgeon health.
10)Requires the PHP vendor to monitor the monitoring entities
that participating physicians and surgeons have retained for
monitoring a participant's treatment and to provide ongoing
services to physicians and surgeons that resume practice.
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11)Requires the PHP vendor to have a system for immediately
reporting physicians and surgeons who fail to meet the
requirements of the PHP, as specified, and prohibits the PHP
vendor from providing this information to any other individual
or entity unless authorized by the enrolled physician and
surgeon.
12)Requires the contract entered into pursuant to this bill to
also require the PHP vendor to do both of the following:
a) Report annually to the Oversight Committee statistics
related to the PHP, as specified, without disclosing any
personally identifiable information relating to any
participant; and,
b) Submit to periodic audits and inspections of all
operations, records, and management related to the PHP to
ensure compliance with the requirements of this bill and
its implementing rules and regulations.
13)Requires, in addition to specified auditing requirements, the
Oversight Committee to monitor compliance of the PHP with the
requirements of this bill. The Oversight Committee or its
designee may make periodic inspections and onsite visits with
the vendor contracted to provide PHP services.
14)Requires copies of the audits referenced in 12), above, to be
published and provided to the appropriate policy committees of
the Legislature within 10 business days of publication. A
copy shall also be made available to the public by posting a
link on the Oversight Committee's Internet Web site homepage
no more than 10 business days after publication.
15)Requires a physician and surgeon, as a condition of
participation in the PHP, to enter into an individual
agreement with the PHP and agree to pay expenses related to
treatment, monitoring, laboratory tests, and other activities
specified in the participant's written agreement with the PHP.
16)Requires the written agreement between the physician and
surgeon and the PHP to be consistent with the standards
adopted by the Oversight Committee pursuant to 5), above, and
to include all of the following:
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a) A jointly agreed-upon plan and mandatory conditions and
procedures to monitor compliance with the PHP, including,
but not limited to, an agreement to cease practice;
b) Compliance with terms and conditions of treatment and
monitoring;
c) Limitations on practice;
d) Conditions and terms for return to practice;
e) Criteria for PHP completion;
f) Criteria for termination of the participant from the
PHP; and,
g) A stipulation that expenses related to treatment,
monitoring, laboratory tests, and other activities
specified in the participant's written agreement with the
PHP will be paid by the participant.
17)Requires a physician and surgeon who retains the services of
a private monitoring entity to agree to authorize the PHP
vendor to receive reports from the private monitoring entity
and to request information from the private monitoring entity
regarding the physician and surgeon's treatment status. A
physician and surgeon's participation in the PHP pursuant to
an agreement shall be confidential unless waived by the
physician and surgeon, with specified exceptions.
18)Specifies that any agreement entered into pursuant to this
bill shall not be considered a disciplinary action or order by
the MBC, and shall not be disclosed to the Oversight Committee
or the MBC if both of the following apply:
a) The physician and surgeon did not enroll in the PHP as a
condition of probation or as a result of an action of the
MBC; and,
b) The physician and surgeon is in compliance with the
conditions and procedures in the agreement.
19)Requires the PHP to immediately report the name of a
participant to the MBC and the Oversight Committee when it
learns of the participant's failure to meet the requirements
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of the PHP, as specified. The PHP shall also immediately
report the name of a participant to the Oversight Committee
when it learns that the participant's impairment is not
substantially alleviated through treatment, or if the
participant withdraws or is terminated from the PHP prior to
completion, or if, in the opinion of the PHP after a risk
assessment is conducted, the participant is unable to practice
medicine with reasonable skill and safety. Notwithstanding
other provisions of this bill, the report shall provide
sufficient information to permit the MBC to assess whether
discipline or other action is required to protect the public.
20)Provides, with specified exceptions, that any oral or written
information reported to the MBC pursuant to this bill,
including, but not limited to, any physician and surgeon's
participation in the PHP and any agreement entered into
pursuant to this bill, shall remain confidential, as
specified, and shall not constitute a waiver of any existing
evidentiary privileges under any other provision or rule of
law. However, confidentiality regarding the physician and
surgeon's participation in the PHP and of all information and
records created by the PHP related to that participation shall
not apply if the MBC has referred a participant as a condition
of probation.
21)Provides that nothing in this bill prohibits, requires, or
otherwise affects the discovery or admissibility of evidence
in an action by the MBC against a physician and surgeon based
on acts or omissions within the course and scope of his or her
practice.
22)Prohibits any information received, developed, or maintained
by the Oversight Committee regarding a physician and surgeon
in the PHP from being used for any other purposes.
23)Increases the existing biennial license renewal fee for
physicians and surgeons by $39.50 for the purposes of this
bill, except those described in 15) through 22), above, and
requires the MBC to transfer every month the revenue generated
from this increase to the trust fund described below.
24)Establishes in the State Treasury the PHAMQ Trust Fund (Trust
Fund), requires all revenue generated by this bill's increase
in license renewal fees to be deposited into the Trust Fund,
and requires the funds to be used, upon appropriation by the
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Legislature, exclusively for the purposes of this bill, except
those described in 15) through 22), above.
25)Provides that nothing in this bill shall be construed to
prohibit additional funding from private sources from being
used to support operations of the PHP or to support the
establishment of the Oversight Committee and the PHP.
26)Requires the Oversight Committee to report to DCA statistics
received from the PHP and requires DCA to report to the
appropriate policy committees of the Legislature on or before
October 1, 2014, and annually thereafter until October 1,
2018, the outcomes of the program, as specified. However, in
making those reports, the Oversight Committee and DCA shall
not disclose any personally identifiable information relating
to any physician and surgeon participating in the PHP, as
specified.
27)Requires the Oversight Committee to biennially contract to
perform an audit of the PHP and its vendors, beginning two
years after the award of an initial five-year contract, as
specified, prohibits General Fund revenue from being used for
this purpose, and requires any person or entity conducting the
audit to maintain the confidentiality of all records reviewed
and information obtained in the course of conducting the audit
and to not disclose any information identifying any PHP
participant.
28)Requires the biennial audit described above to be completed
by a date uncertain and to ascertain if the PHP is operating
in conformance with the rules and regulations established by
the Oversight Committee.
29)Provides numerous definitions for terms used in the PHAMQ
Act, including:
30)"Impairment" means the inability to practice medicine with
reasonable skill and safety to patients by reason of alcohol
or substance abuse, a mental disorder, or another health
condition as determined by a clinical evaluation in individual
circumstances.
31)"Physician Health Program" or "program" means the program as
defined in the bill and includes vendors, providers, or
entities that contract with the Oversight Committee. The
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program itself shall not offer or provide treatment services
to physicians and surgeons.
32)"Physician and surgeon" means a holder of a valid physician
and surgeon's certificate. For the purposes of participating
in the PHP, "physician and surgeon" also means a student
enrolled in a medical school approved or recognized by the
MBC, a graduate of a medical school enrolled in a medical
specialty residency training program approved or recognized by
the MBC, or a physician and surgeon seeking reinstatement of a
license from the MBC.
33)"Qualifying illness" means alcohol or substance abuse, a
mental disorder, or another health condition that a clinical
evaluation determines can be monitored and treated with
private clinical and monitoring programs.
EXISTING LAW
1)Provides for the licensure and regulation of physicians and
surgeons by the MBC under the DCA pursuant to the Medical
Practice Act.
2)Specifies that it is the intent of the Legislature that the
DCA conduct a thorough audit of the effectiveness, efficiency,
and overall performance of the 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 physical
illness.
3)Establishes in DCA the SACC, comprised of executive officers
of DCA's healing arts boards as specified below and a designee
of the State Department of Alcohol and Drug Programs.
4)Requires the SACC 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.
5)Requires the following boards to establish criteria for the
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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.
6)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
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.
7)States, under the Public Contract Code, that it is the intent
of the Legislature to provide all qualified bidders with a
fair opportunity to enter the bidding process, thereby
stimulating competition in a manner conducive to sound fiscal
practices, and to eliminate favoritism, fraud, and corruption
in the awarding of public contracts.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of this bill . According to the author, "The MBC
operated the Diversion Program for 27 years, which utilized
statutory authority granted to 'divert' a physician into the
Diversion Program for treatment and rehabilitation in lieu of
facing disciplinary action. In 2007, the Diversion Program was
terminated following the release of audit upon audit exposing
the egregious shortcomings of the program, which in many cases
put patients at tremendous risk.
"Since the end of the diversion program, physicians dealing with
alcohol or substance abuse issues, mental illness, or other
health conditions that may interfere with their ability to
practice medicine safely can seek private treatment and
monitoring services. However, California is one of only five
states in the United States that does not have a physician
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health program to coordinate and provide care and referral
services for physicians suffering from these maladies.
"This is a serious public health risk for the state, as these
troubled practitioners present a very real and immediate threat
to patients. Without a statewide system for increasing
awareness among the medical community about health issues that
could interfere with safe practice, coordination and oversight
of private treatment and monitoring programs, education about
such private early intervention options, and provision of
resources and referrals to ensure physicians and surgeons are
better able to choose high quality private interventions that
meet their specific needs, California's already overburdened and
aging physician workforce often has no other option than keeping
their struggle to themselves and trying to work through it.
This is both unsafe and unacceptable."
Background . According to the website of the California Public
Protection and Physician Health, Inc., (CPPPH), "CPPPH is an
independent, non-profit California public benefit corporation
established in 2009 to develop a comprehensive statewide
physician health program so that California does not remain one
of the few states without such a resource. It is a
collaborative effort funded by many medical organizations
including specialty societies, county medical societies, as well
as the California Hospital Association and liability carriers
and medical groups. It provides consultation, coordination,
education and network-building. It promulgates guidelines for
physician health service providers and policies and procedures
for physician health committees.
"CPPPH was formed in 2009 by organizations with a long-standing
involvement with physician health, namely the California Society
of Addiction Medicine, the California Psychiatric Association,
the California Medical Association, and the California Hospital
Association. Its activities are based in the understanding that
supporting physician health contributes to public safety by
providing services for physicians who face medical, substance
use, psychological, behavioral and/or emotional issues that, if
left unaddressed, could adversely impact their ability to
deliver safe patient care."
The goals and activities of the CPPPH are to:
Collaborate with physicians, physician groups and entities
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responsible for quality patient care in defining an optimum
program for California;
Provide consultation, education and assistance to strengthen
the network of services;
Develop guidelines and standards for physician health service
providers, and,
Create a full-scale statewide program that coordinates all the
services needed to address the spectrum of physician health
issues.
The CPPPH website further states, "CPPPH was formed by the
Workgroup on Physician Health - a coalition of medical and
specialty societies, the hospital association, liability
carriers and large medical groups. The Workgroup had been
convened as soon as the Medical Board of California announced
its plan to close its Diversion Program for Physicians on June
30, 2008. From its inception, the founders of CPPPH recognized
that it would take time to establish a full-scale program that
promotes physician wellness and coordinates the different
services needed to address the full spectrum of physician health
issues. They developed a business plan to reach that goal with
an incremental, phased-in approach, adding services and
activities as they became feasible, and seeking legislation to
establish a statewide program."
The CPPPH website includes a copy of the organization's business
plan, dated August 30, 2010, which states in part, "From the
start, CPPPH will focus on getting the desired legislation and
developing the plan for a statewide program."
Under a section outlining activities during CPPPH's first 16
months, the plan states that it will "carry out all facets of
preparation for seeking legislation that mandates the existence
of, and funds, a statewide program."
In a section titled, "Funding through Licensing Fees," the CPPPH
business plan states, "If legislation is passed and signed, the
state could contract with a non-profit entity (such as CPPPH) to
deliver services. Program operations of the contracted
non-profit entity would be supported by the Contingency Fund of
the MBC, which is funded by licensing fees paid by California
physicians. If legislation is not approved and/or the CPPPH is
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not selected as the approved contractor, CPPPH will need to seek
private funding to maintain program operations beyond the first
two years."
In a section titled, "Participant Fees," the CPPPH business plan
also states, "Fees paid by individual physicians who utilize
CPPPH services will contribute to the support of CPPPH.
However, it is unlikely that this could be the sole source of
funding. If high participation fees are levied on participants,
this is likely to be a significant barrier to participation,
since participants would already be paying for their individual
treatment, urine testing and monitoring services, and may not
have additional funds to pay for an oversight program. At most,
a state-mandated program would only receive modest revenues from
participation fees."
It would appear from these statements that the CPPPH built into
its business plan the assumption that a PHP would be
legislatively mandated, including funding through license fees.
This bill does both. This bill also establishes a number of
requirements for the PHP vendor, including:
Requiring the chief executive officer of the PHP vendor to
have expertise in the areas of substance or alcohol abuse, and
mental disorders in health care professionals;
Requiring the PHP vendor to have a medical director to oversee
clinical aspects of the program's operations, and requiring
the medical director to have expertise in the diagnosis and
treatment of alcohol and substance abuse and mental disorders
in health care professionals; and,
Requiring the PHP vendor to have established relationships
with local medical societies and hospital well-being
committees for conducting education, outreach, and referrals
for physician and surgeon health.
While it is not known how many potential vendors would meet
these requirements, it appears that the CPPPH fits this
description.
Given the provisions under California's Public Contract Code for
the procurement of goods and services by state agencies, and the
ability of each agency to tailor its bid specifications
according to its specific contracting needs, the necessity for
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this degree of specification in statute is not clear. The
Committee may wish to consider whether these provisions of the
bill would compromise the competitive bidding principles of the
Public Contract Code and unfairly give an advantage to the
CPPPH.
Support . The California Medical Association writes, "Without
having a program in California, physicians who suffer from these
issues and conditions often do not know where to go for help,
and many of them end up continuing to practice while trying to
'deal with it' on their own. This presents a significant public
health and public safety risk.
"SB 1483 will set up a program, to be funded solely through
physician license fees, to coordinate referrals for treatment
and monitoring services for physicians who would enter the
program voluntarily. The physician community believes that it
is critical that we create and finance this effort ourselves,
for our fellow physicians, in order to provide a single place
for them to go when seeking information on and help acquiring
treatment.
"California is currently suffering a shortage of physicians,
which will be compounded with the advent of health reform in
2014. It is critical that we protect and preserve those
physicians currently practicing in California, and provide them
with the same type of treatment assistance California currently
provides to many other licensed professionals, including
attorneys, pharmacists, nurses and veterinarians."
The California Psychiatric Association states, "SB 1483 would
create a public-private partnership to develop and monitor a
coordinated state system of confidential treatment for
physicians. California is only one of five states which lacks
any sort of program promoting physician health. This lack
presents a public health risk and squanders precious physician
resources that the state needs badly."
Previous legislation . AB 526 (Fuentes) of 2009 establishes a
voluntary PHP within the State and Consumer Services Agency to
assist physicians and surgeons with alcohol or substance abuse.
This bill was held in Senate Appropriations Committee.
AB 214 (Fuentes) of 2008 establishes a voluntary PHP within the
Department of Public Health to assist physicians and surgeons
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with alcohol or substance abuse. This bill was vetoed with the
following message: "PHPs provide a valuable service and help
ensure public safety by encouraging doctors to obtain treatment
to overcome substance abuse or manage mental illness. However,
separating the operation of such programs from the MBC is
inappropriate. Ideally, diversion programs would always lead to
success, but the reality is that not everyone succeeds in
recovery. It is critical that the licensing agency be directly
involved in monitoring participation in diversion programs to
protect patients and enable timely enforcement actions."
SB 1441 (Ridley-Thomas), Chapter 548, Statutes of 2008,
establishes within DCA the SACC to develop uniform standards and
controls for programs dealing with licensees with substance
abuse problems.
AB 2443 (Nakanishi) of 2008 requires the MBC to establish a
program to promote the well-being of physicians and surgeons.
This bill was vetoed with the following message: "This bill,
while well-intentioned, detracts from the mission and purpose of
the MBC. The Board 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) of 2007 extends the sunset date of the
Diversion Program to July 1, 2010. This bill was held in
Assembly Appropriations Committee.
SB 231 (Figueroa), Chapter 674, Statutes of 2005, contains
various provisions relating to the MBC and establishes a January
1, 2009, sunset date for the Diversion Program.
REGISTERED SUPPORT / OPPOSITION :
Support
California Medical Association (co-sponsor)
California Psychiatric Association (co-sponsor)
California Society of Addiction Medicine (co-sponsor)
California Academy of Family Physicians
California Hospital Association
California Society of Anesthesiologists
Kaiser Permanente
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Opposition
None on file.
Analysis Prepared by : Angela Mapp / B.,P. & C.P. / (916)
319-3301