Amended in Senate April 20, 2016

Amended in Senate April 4, 2016

Senate Bill No. 1177

Introduced by Senator Galgiani

February 18, 2016

An act to add Article 14 (commencing with Section 2340) to Chapter 5 of Division 2 of the Business and Professions Code, relating to healing arts.

LEGISLATIVE COUNSEL’S DIGEST

SB 1177, as amended, Galgiani. Physician and Surgeon Health and Wellness Program.

Existing law establishes in the Department of Consumer Affairs the Substance Abuse Coordination Committee, comprised of the executive officers of the department’s healing arts boards and a designee of the State Department of Health Care Services. Existing law requires the committee to formulate, by January 1, 2010, uniform and specific standards in specified areas that each healing arts board is required to use in dealing with substance-abusing licensees, whether or not a healing arts board has a formal diversion program. begin delete Existing end delete

begin insert Existing end insert law, the Medical Practice Act, provides for the licensure and regulation of physicians and surgeons by the Medical Board of California within the department. begin insert Existing law requires all moneys paid to and received by the Medical Board of California to be paid into the state treasury and credited to the Contingent Fund of the Medical Board of California, which, except for fine and penalty money, is a continuously appropriated fund. end insert

This bill would authorize the board to establish a Physician and Surgeon Health and Wellness Program for the early identification begin insert of, end insert and appropriate interventions to support a physician and surgeon in his or her rehabilitation begin delete from end delete begin insert from, end insert substance abuse, begin delete physical or mental health, burnout, or other similar conditions, end delete as specified. If the board establishes a program, the bill would require the board to contract for the program’s administration with begin delete an end delete begin insert a private third-party end insert independent administering entity meeting certain requirements. The bill would require program participants to enter into begin delete a contractual end delete begin insert an individual end insert agreement begin delete agreeing to cooperate with all elements of the program designed for the individual participant for successful completion of any treatment or monitoring recommendations. end delete begin insert with the program that includes, among other things, a requirement to pay expenses related to treatment, monitoring, and laboratory tests, as provided. end insert

begin delete

This bill would declare the intent of the Legislature to enact legislation that would authorize an administrative fee to be established by the board to be charged to the individual licensee for participation in the program and require all costs of treatment to be paid by the participant.

end delete begin insert

This bill would create the Physician and Surgeon Health and Wellness Program Account within the Contingent Fund of the Medical Board of California. The bill would require the board to adopt regulations to determine the appropriate fee for a physician and surgeon to participate in the program, as specified. The bill would require these fees to be deposited in the Physician and Surgeon Health and Wellness Program Account and to be available, upon appropriation by the Legislature, for the support of the program. Subject to appropriation by the Legislature, the bill would authorize the board to use moneys from the Contingent Fund of the Medical Board of California to support the initial costs for the board to establish the program, except the bill would prohibit these moneys from being used to cover any costs for individual physician and surgeon participation in the program.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Article 14 (commencing with Section 2340) is
added to Chapter 5 of Division 2 of the Business and Professions
Code, to read:

 

Article 14.  Physician and Surgeon Health and Wellness Program

 

begin delete

2340.  

(a) The board may establish a Physician and Surgeon
Health and Wellness Program for the early identification and
appropriate interventions to support a physician and surgeon in
his or her rehabilitation from substance abuse, physical or mental
health, burnout, or other similar conditions to ensure that the
physician and surgeon remains able to practice medicine in a
manner that will not endanger the public health and safety and will
maintain the integrity of the medical profession. The program, if
established, shall aid a physician and surgeon with those health
issues impacting his or her ability to practice medicine.

(b) For the purposes of this article, “program” shall mean the
Physician and Surgeon Health and Wellness Program.

(c) If the board establishes a program, the program shall meet
the requirements of this article.

2340.2.  

(a) If the board establishes a program, the board shall
contract for the program’s administration with an independent
administering entity that shall do all of the following:

(1) Provide for the education of physicians and surgeons with
respect to the recognition and prevention of physical, emotional,
and psychological problems and provide for intervention when
necessary or under circumstances that may be established through
regulations adopted by the board.

(2) Offer assistance to a physician and surgeon in identifying
physical, emotional, or psychological problems.

(3) Evaluate the extent of physical, emotional, or psychological
problems and refer the physician and surgeon to the appropriate
treatment.

(4) Pursuant to regulations adopted by the board addressing
protocols to report compliance back to the referring entity described
in paragraph (6), monitor the compliance of a physician and
surgeon who has been referred for treatment.

(5) Provide counseling and support for the physician and surgeon
and for the family of any physician and surgeon referred for
treatment.

(6) Agree to receive referrals from the board and other health
care entities, including, but not limited to, hospital medical staffs,
well-being committees, and medical corporations.

(7) Agree to make their services available to all licensed
California physicians and surgeons.

(b) For the purposes of the program, an administering entity
shall mean a private entity contracted to perform the duties
described in, and meet the requirements of, this article. A request
for proposals shall be solicited by the board in the selection of the
administering entity.

2340.4.  

The administering entity of the program shall:

(a) Have expertise and experience in the areas of substance or
alcohol abuse, and mental disorders in healing arts professionals.

(b) Evaluate the program’s progress, prepare reports and provide
an annual accounting to the board on nonconfidential, statistical
information as determined by the board.

(c) Identify and use a statewide treatment resource network,
which includes treatment and screening programs and support
groups.

(d) Demonstrate a process for evaluating the effectiveness of
such programs.

(e) Be subject to an independent audit.

2340.6.  

(a) All participants of the program shall enter into a
contractual agreement agreeing to cooperate with all elements of
the program designed for the individual participant for successful
completion of any treatment or monitoring recommendations as
determined by the administering entity.

(b) If a participant referred to the program is terminated from
the program for any reason other than the successful completion
of the program, the administrating entity shall inform the referring
entity of the participant’s termination. If the program determines
that the continued practice of medicine by that individual creates
too great a risk to public health, safety, and welfare, that fact shall
be reported to the referring entity and all documents and
information pertaining to and supporting that conclusion shall be
provided to the referring entity.

(c) Unless required under subdivision (b), all program records
and documents and records and documents of participation of a
physician and surgeon in the program shall be confidential and are
not subject to discovery or subpoena.

(d) Participation in the program shall not be a defense to any
disciplinary action that may be taken by the board. This section
does not preclude the board from commencing disciplinary action
against a physician and surgeon who is terminated unsuccessfully
from the program. However, that disciplinary action may not
include as evidence any confidential information, including
documents and records described in subdivision (c).

2340.8.  

No program employee, contractor, or agent thereof,
shall be liable for any civil or criminal damages because of acts
or omissions that may occur while acting in good faith in a program
established pursuant to this article.

2340.10.  

(a) It is the intent of the Legislature to enact
legislation that would authorize an administrative fee to be
established by the board to be charged to the individual licensee
for participation in the program and to require all costs of treatment
to be paid by the participant.

(b) It is the intent of the Legislature to enact legislation that
would provide that nothing in this section shall be construed to
prohibit additional funding from private contributions from being
used to support the operations of the program.

2340.12.  

The Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code) shall apply to regulations adopted
pursuant to this article.

end delete begin insert

begin insert 2340. end insert   

(a) The board may establish a Physician and Surgeon
Health and Wellness Program for the early identification of, and
appropriate interventions to support a physician and surgeon in
his or her rehabilitation from, substance abuse to ensure that the
physician and surgeon remains able to practice medicine in a
manner that will not endanger the public health and safety and
that will maintain the integrity of the medical profession. The
program, if established, shall aid a physician and surgeon with
substance abuse issues impacting his or her ability to practice
medicine.

(b) For the purposes of this article, “program” shall mean the
Physician and Surgeon Health and Wellness Program.

(c) If the board establishes a program, the program shall meet
the requirements of this article.

end insert begin insert

begin insert 2340.2. end insert   

(a) If the board establishes a program, the program
shall do all of the following:

(1) Provide for the education of all licensed physicians and
surgeons with respect to the recognition and prevention of physical,
emotional, and psychological problems.

(2) Offer assistance to a physician and surgeon in identifying
substance abuse problems.

(3) Evaluate the extent of substance abuse problems and refer
the physician and surgeon to the appropriate treatment by
executing a written agreement with a physician and surgeon
participant.

(4) Provide for the confidential participation by a physician
and surgeon with substance abuse issues who is not the subject of
a current investigation.

(5) Comply with the Uniform Standards Regarding
Substance-Abusing Healing Arts Licensees as adopted by the
Substance Abuse Coordination Committee of the Department of
Consumer Affairs pursuant to Section 315.

end insert begin insert

begin insert 2340.4. end insert   

(a) If the board establishes a program, the board shall
contract for the program’s administration with a private third-party
independent administering entity pursuant to a request for
proposals. The process for procuring the services for the program
shall be administered by the board pursuant to Article 4
(commencing with Section 10335) of Chapter 2 of Part 2 of
Division 2 of the Public Contract Code. However, Section 10425
of the Public Contract Code shall not apply to this subdivision.

(b) The administering entity shall have expertise and experience
in the areas of substance or alcohol abuse in healing arts
professionals.

(c) The administering entity shall identify and use a statewide
treatment resource network that includes treatment and screening
programs and support groups and shall establish a process for
evaluating the effectiveness of such programs.

(d) The administering entity shall provide counseling and
support for the physician and surgeon and for the family of any
physician and surgeon referred for treatment.

(e) The administering entity shall make their services available
to all licensed California physicians and surgeons, including those
who self-refer to the program.

(f) The administering entity shall have a system for immediately
reporting a physician and surgeon who is terminated from the
program to the board. This system shall ensure absolute
confidentiality in the communication to the board. The
administering entity shall not provide this information to any other
individual or entity unless authorized by the participating physician
and surgeon.

(g) The contract entered into pursuant to this section shall also
require the administering entity to do the following:

(1) Provide regular communication to the board, including
annual reports to the board with program statistics, including, but
not limited to, the number of participants currently in the program,
the number of participants referred by the board as a condition
of probation, the number of participants who have successfully
completed their agreement period, and the number of participants
terminated from the program. In making reports, the administering
entity shall not disclose any personally identifiable information
relating to any participant.

(2) Submit to periodic audits and inspections of all operations,
records, and management related to the program to ensure
compliance with the requirements of this article and its
implementing rules and regulations. Any audit conducted pursuant
to this section shall maintain the confidentiality of all records
reviewed and information obtained in the course of conducting
the audit and shall not disclose any information identifying a
program participant.

(h) In the event that the board determines the administering
entity is not in compliance with the requirements of the program
or contract entered into with the board, the board may terminate
the contract.

end insert begin insert

begin insert 2340.6. end insert   

(a) A physician and surgeon shall, as a condition of
participation in the program, enter into an individual agreement
with the program and agree to pay expenses related to treatment,
monitoring, laboratory tests, and other activities specified in the
participant’s written agreement. The agreement shall include all
of the following:

(1) A jointly agreed upon plan and mandatory conditions and
procedures to monitor compliance with the program.

(2) Compliance with terms and conditions of treatment and
monitoring.

(3) Criteria for program completion.

(4) Criteria for termination of a physician and surgeon
participant from the program.

(5) Acknowledgment that withdrawal or termination of a
physician and surgeon participant from the program shall be
reported to the board.

(6) Acknowledgment that expenses related to treatment,
monitoring, laboratory tests, and other activities specified by the
program shall be paid by the physician and surgeon participant.

(b) Any agreement entered into pursuant to this section shall
not be considered a disciplinary action or order by the board and
shall not be disclosed if both of the following apply:

(1) The physician and surgeon did not enroll in the program as
a condition of probation or as a result of an action by the board.

(2) The physician and surgeon is in compliance with the
conditions and procedures in the agreement.

(c) Any oral or written information reported to the board shall
remain confidential 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 program and related records shall not apply
if the board has referred a participant as a condition of probation.

(d) Nothing in this section prohibits, requires, or otherwise
affects the discovery or admissibility of evidence in an action by
the board against a physician and surgeon based on acts or
omissions within the course and scope of his or her practice.

(e) Any information received, developed, or maintained
regarding a physician and surgeon in the program shall not be
used for any other purposes.

(f) Participation in the program shall not be a defense to any
disciplinary action that may be taken by the board. This section
does not preclude the board from commencing disciplinary action
against a physician and surgeon who is terminated unsuccessfully
from the program. However, that disciplinary action may not
include as evidence any confidential information unless authorized
by this section.

end insert begin insert

begin insert 2340.8. end insert   

(a) The Physician and Surgeon Health and Wellness
Program Account is hereby established within the Contingent Fund
of the Medical Board of California. Any fees collected by the board
pursuant to subdivision (b) shall be deposited in the Physician and
Surgeon Health and Wellness Program Account and shall be
available, upon appropriation by the Legislature, for the support
of the program.

(b) The board shall adopt regulations to determine the
appropriate fee that a physician and surgeon participating in the
program shall provide to the board. The fee amount adopted by
the board shall be set at a level sufficient to cover all costs for
participating in the program.

(c) Subject to appropriation by the Legislature, the board may
use moneys from the Contingent Fund of the Medical Board of
California to support the initial costs for the board to establish
the program under this article, except these moneys shall not be
used to cover any costs for individual physician and surgeon
participation in the program.

end insert begin insert

begin insert 2340.10. end insert   

The Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code) shall apply to regulations adopted
pursuant to this article.

end insert