BILL ANALYSIS Ó
SENATE COMMITTEE ON
BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
Senator Jerry Hill, Chair
2015 - 2016 Regular
Bill No: SB 1177 Hearing Date: April 18,
2016
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|Author: |Galgiani |
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|Version: |April 4, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Sarah Mason |
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Subject: Physician and Surgeon Health and Wellness Program
SUMMARY: Authorizes the Medical Board of California (MBC) to establish
a Physician and Surgeon Health and Wellness Program for the
early identification and appropriate interventions to support a
licensee in his or her rehabilitation from substance abuse,
physical or mental illness, health, burnout, or other similar
conditions and authorizes MBC to contract with an independent
entity to administer the program.
Existing law:
1)Establishes the Department of Consumer Affairs (DCA) which
oversees boards and bureaus that license and regulate
businesses and professions, including but not limited to
physicians, nurses, dentists, engineers, architects,
contractors, cosmetologists, automotive repair facilities
and private postsecondary education institutions.
(Business and Professions Code (BPC § 101)
2)Requires individuals or entities contracting with the DCA
or any board within the DCA to provide 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. (BPC § 156.1)
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3)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.
(Id.)
4)Establishes the Substance Abuse Coordination Committee
(SACC) in the DCA, comprised of executive officers of the
DCA's healing arts boards and a designee of the State
Department of Health Care Services. (BPC § 315 (a))
5)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. (BPC § 315
(c))
6)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. (BPC §
315.2)
7)Permits a healing arts board 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 diagnostic evaluation pursuant to uniform and
specific standards, as specified, but that this
requirement shall not apply to the BRN for purposes of
their intervention program. (BPC §§ 315.4 (a) and (d))
8)Prohibits an order to cease practice from being governed
by the Administrative Procedures Act (APA), and states
that the order shall not constitute a disciplinary
action. (BPC §§ 315.4 (b) and (c))
9)Requires the following boards to establish a diversion
program for board licensees in order to seek ways and
means to identify and rehabilitate licensees whose
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competency may be impaired due to abuse of dangerous
drugs and alcohol, so that licensees may be treated and
returned to practice in a manner which will not endanger
the public health and safety. Most also specify
Legislative intent that a diversion program (or
intervention program) is a voluntary alternative approach
to traditional disciplinary actions:
a) The Dental Board of California for dentists and dental
hygienists. (BPC §§ 1695-1699 and BPC §§ 1966-1966.6))
b) The Osteopathic Medical Board of California for
osteopathic physicians and surgeons. (BPC §§ 2360-2370)
c) The Physical Therapy Board of California for physical
therapists. (BPC §§ 2662-2669)
d) The Board of Registered Nursing for registered nurses.
(BPC §§ 2770-2770.14)
e) The Physician Assistant Board for physician assistants.
(BPC §§ 3534- 3534.10)
f) The Board of Pharmacy to operate a recovery program for
pharmacists or intern pharmacists. (BPC §§ 4360-4373)
g) The Veterinary Medical Board for veterinarians and
registered veterinary technicians. (BPC §§ 4860-4873)
10)Establishes the Attorney Diversion and Assistance Act
within the State Bar of California to address the
substance abuse and mental health problems of attorneys
who voluntarily participate in the program. (BPC §§
6230-6238)
11)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. (BPC § 805)
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12)Requires a report to be filed by a peer review body to an
agency having regulatory jurisdiction over healing arts
licentiates if a licentiate's application for staff
privileges is denied or rejected, has had his or her
membership, staff privileges, or employment terminated or
revoked for medical disciplinary reasons; or if
restrictions are imposed, or voluntarily accepted, on
staff privileges, membership or employment for a
cumulative total of 30 days or more for any 12-month
period, for a medical disciplinary cause or reason
(Commonly referred to as an "805 report" pursuant to §
805 of the BPC.)
13)Requires a peer review body to file a report with the
relevant agency within 15 days after a peer review body
makes a final decision or recommendation regarding the
disciplinary action to be taken against a licentiate if
it is determined, based on the investigation of the
licentiate, that the licentiate was involved in the use
of, or prescribing for or administering to himself or
herself, any controlled substance; or the use of any
dangerous drug or alcoholic beverages, to the extent, or
in such a manner as to be dangerous or injurious to the
licentiate, any other person, or to the public, or to the
extent that such use impairs the ability of the
licentiate to practice safely. (BPC § 805.01)
14)Provides for the licensure and regulation of physicians
and surgeons by the Medical Board of California (MBC)
pursuant to the Medical Practice Act (Act). (Business and
Professions Code (BPC) § 2000 et. seq.)
15)Requires MBC to investigate complaints from the public,
other licensees, health care facilities or from others
as specified. Requires MBC to investigate the
circumstances underlying a report received pursuant to
BPC §805 or §805.01 above within 30 days to determine if
an interim suspension order or temporary restraining
order should be issued. (BPC § 2220)
16)Requires MBC to prioritize its investigative and
prosecutorial resources to ensure that physicians and
surgeons representing the greatest threat of harm are
identified and disciplined expeditiously. Requires
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cases involving drug or alcohol abuse by a physician and
surgeon involving death or serious bodily injury to a
patient to be handled as a high priority. (BPC
§2220.05)
17)Provides MBC with the authority to issue a probationary
physician's and surgeon's certificate to an applicant subject
to terms and conditions, including, but not limited to
practice limited to a supervised, structured environment,
continuing medical or psychiatric treatment, ongoing
participation in a specified rehabilitation program, or
abstention from the use of alcohol or drugs. (BPC §2221)
18)Provides that the MBC shall take action against a
physician who is charged with unprofessional conduct, as
specified. (BPC § 2234)
19)Provides that a violation of any federal or state
statute or regulation regulating dangerous drugs or
controlled substances constitutes unprofessional
conduct. (BPC § 2238)
20)Provides that the use of, or self prescribing or self
administering, of any controlled substance or dangerous
drugs or alcoholic beverages in such a manner as to be
dangerous or injurious to the licensee or any other
person or to the public, or to the extent that such use
impairs the ability of the licensee to practice medicine
safely, or more than one misdemeanor or any felony
involving the use, consumption or self-administration of
any of these substances, constitutes unprofessional
conduct. (BPC § 2239)
This bill:
1)Authorizes MBC to establish a Physician and Surgeon Health and
Wellness Program (PHWP) for the early identification and
appropriate interventions to support a licensee in his or her
rehabilitation from substance abuse, physical or mental
illness, health, burnout, or other similar conditions to
ensure that the licensee 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.
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2)Requires MBC, if it establishes a PHWP, to contract for
administration with an independent administering entity
selected by MBC through a request for proposals process and
requires the PHWP to:
a) Educate licensees about 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;
b) Offer assistance to licensees in identifying physical,
emotional, or psychological problems;
c) Evaluate the extent of physical, emotional, or
psychological problems and refer licensees to the
appropriate treatment;
d) Monitor the compliance of licensees referred for
treatment pursuant to regulations;
e) Provide counseling and support for licensees and for the
family of any licensee referred for treatment;
f) Agree to receive referrals from MBC and other health
care entities like hospital medical staffs, well-being
committees, and medical corporations; and
g) Agree to make their services available to all California
MBC licensees.
1)Requires the administering entity to have expertise and
experience in the areas of substance or alcohol abuse, and
mental disorders in healing arts professionals, evaluate the
PHWP's progress, prepare reports and provide an annual
accounting to MBC, identify and use a statewide treatment
resource network including treatment and screening programs
and support groups, demonstrate a process for evaluating the
effectiveness of those programs and be subject to an
independent audit.
2)Requires the administering entity to inform the referring
entity if a participant is terminated from the PHWP for any
reason other than the successful completion of the program.
Provides that if the PHWP determines that the continued
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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 along with all documents and
information regarding that conclusion.
3)Makes all PHWP records and documents and records and documents
related to licensee participation confidential and not subject
to discovery or subpoena.
4)States that participation in the PHWP shall not be a defense
to any disciplinary action that may be taken by MBC and
specifies that MBC may commence disciplinary action against a
licensee who is terminated unsuccessfully but that
disciplinary action may not include as evidence any
confidential information in
Item #5) above.
5)Provides a PHWP employee, contractor or agent immunity from
civil liability or criminal damages for acts or omissions that
may occur while acting in good faith in a PHWP.
6)States Legislative intent to authorize an administrative fee
to be established by MBC 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.
7)States Legislative intent that additional funding from private
contributions to support the operations of the program is not
prohibited.
8)Requires regulations related to the PHWP to be subject to the
Administrative Procedure Act (APA).
FISCAL
EFFECT: Unknown. This bill is keyed "fiscal" by Legislative
Counsel.
COMMENTS:
1. Purpose. This bill is sponsored by the California Medical
Association (CMA). According to the Author, "Currently,
California physicians and surgeons are the only licensed
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medical professionals without a wellness and treatment
program aimed at providing support and rehabilitation for
substance abuse, stress, and other health issues. In fact,
California is just one of a few states nationwide that does
not provide a pathway for physicians and surgeons to address
substance abuse and mental health problems. Physicians
experience health problems at the same frequency as the
general population. Most states have robust physician health
programs to evaluate and coordinate care for physicians
suffering from mental health, behavioral health or substance
abuse issues. Because there is no program in California,
many who suffer from these conditions often do not know where
to turn for help. California needs a statewide system to
increase awareness and coordination of reliable treatment
options."
2. Background.
a) The Medical Board's former Physician Diversion Program
(PDP). The MBC's PDP was created in 1980 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.
The PDP was a voluntary program and only those physicians and
surgeons who voluntarily requested diversion treatment and
supervision could participate in the program. A physician could
enter the diversion program in any of the following ways: a)
self-referral; b) referral by the MBC's Enforcement Unit in lieu
of discipline; or c) directed as part of a disciplinary order.
Confidentiality was required for physicians and doctors that
self-refer and could be granted to those who were referred by
MBC (doctors could avoid public discipline if there was no
evidence of patient harm and they successfully completed the
program). For those who were directed to the program as part of
a disciplinary order, disciplinary actions are public records
and the practice violation that triggered the MBC's involvement
would be reflected in the doctor's public file. Any physician
and surgeon terminated from the PDP for failure to comply with
program requirements was subject to a disciplinary action for
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acts committed before, after or during participation in the PDP,
and a physician that successfully completed the PDP was not
subject to any disciplinary action for any alleged violation
that resulted in referral to the PDP. The PDP monitored
participants' attendance at group meetings, facilitated random
drug testing, and required reports from work-site monitors and
treatment providers. Many of the physicians in the PDP retained
full and unrestricted medical licenses during their
participation and enjoyed complete confidentiality. The PDP was
allowed to sunset on June 30, 2008.
b) Audits and Review of the PDP. The Bureau of State
Audits (BSA) audited the PDP four times between 1982 and
2007. In 2005, a statutorily created enforcement monitor
also audited the PDP. The enforcement monitor's audit
indicated that "the Board's PDP 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 PDP
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 pointed 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 PDP did not adequately ensure
that it receives required monitoring reports from its
participants' treatment providers and work-site monitors.
In addition, although the PDP reduced the amount of time it
takes to admit new participants into the program and begin
drug testing, it did not always respond to potential
relapses in a timely and adequate manner. Specifically,
the PDP did not always require 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 percent
were not performed as randomly scheduled. Additionally,
the PDP currently did 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
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program standards. The BSA indicated that MBC had not
provided consistently effective oversight of the PDP.
In recognition that patient safety could not continue to be
compromised, the MBC voted unanimously on July 26, 2007 to end
the PDP, declaring in its motion that "in light of Board'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, the Board hereby
determines it is inconsistent with Board's public protection
mission and policies to operate a diversion program." This
declaration prompted the Board to approve a Diversion Transition
Plan (DTP) on November 2, 2007 to accommodate the 203 physicians
already in the PDP.
c) Other Health Board Diversion Programs. While MBC housed
its diversion program, other boards outsource these
functions. The DCA currently manages a master contract
with MAXIMUS, Inc. (MAXIMUS), a publicly traded corporation
for the healing arts boards that have a diversion program.
Under this model, the individual boards oversee the
programs, but services are provided by MAXIMUS. These
diversion programs generally follow the same general
principles of the MBC's former PDP. Health practitioners
with substance abuse issues may be referred 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 the Medical Board kept in house:
Medical advisors, compliance monitors, case managers, urine
testing system, reporting, and record maintenance. The
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 the Medical Board attempted.
MAXIMUS reports that caseloads range from 100 to 200 per
clinical case management team. MAXIMUS also limits its
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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 Nursing Board. Also, the
contractor performs unobserved, as well as observed, drug
screening.
The most recent audit of MAXIMUS conducted on behalf of DCA by
CPS Human Resources Consulting (CPS Audit) found that overall
MAXIMUS is effectively and efficiently managing the various
diversion programs (the audit only focused on the contractor and
did not look into how boards refer licensees or what boards do
with information from MAXIMUS). The audit recommended that
MAXIMUS be continued as the vendor. Cost of participation
remains an issue and may be cost-prohibitive for many licensees.
Audit findings and recommendations include:
Over the audit period, approximately 67
percent of program participants were female; 80
percent were Caucasian, and the average age increased
from 30-34 years old to 45-49 years old
Approximately 67 percent of participants
entered the program through a referral by a board
Slightly over 50 percent of participants
successfully completed the program
Most relapses occurred in the first year of
the program and primarily due to abuse of alcohol,
narcotics and other opiates, and benzodiazepine but
the rate of relapse has improved over time
BRN does not include nurses on probation in
the program
Some program participants lose their health
insurance, but there are insurance benefits available
for substance abuse and mental health treatment
MAXIMUS should identify a program staff member
whose sole responsibility is to become knowledgeable
about health insurance coverage benefits and referral
sources, and periodically update the clinical case
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managers and compliance monitors (this would require a
change in the master contract with DCA)
Clinical case manager caseloads should be
reduced, program managers should be provided with
recovery training and MAXIMUS should identify ways to
better treat participants suffering from mental
illness (this would require a change in the master
contract with DCA)
MAXIMUS should identify an acceptable, but
less frequent, random testing schedule that would
accomplish the goal and reduce participant cost and
loss; Uniform Standard 4 would then have to be
modified accordingly (this would require a change in
the master contract with DCA)
Participating boards should attempt to monitor
long range participant outcomes after program
completion, which would require a statutory change
(this would require a change in the master contract
with DCA)
a) Uniform Substance Abuse Standards. SB 1441
(Ridley-Thomas, Chapter 548, Statutes of 2008) required the
DCA to develop uniform and specific standards that shall be
used by each healing arts board in dealing with
substance-abusing licensees in 16 specified areas,
including requirements and standards for: (1) clinical and
diagnostic evaluation of the licensee;
(2) temporary removal of the licensee from practice; (3)
communication with licensee's employer about licensee
status and condition; (4) testing and frequency of testing
while participating in a diversion program or while on
probation; (5) group meeting attendance and qualifications
for facilitators;
(6) determining what type of treatment is necessary; (7)
worksite monitoring;
(8) procedures to be followed if a licensee tests positive
for a banned substance; (9) procedures to be followed when
a licensee is confirmed to have ingested a banned
substance; (10) consequences for major violations and minor
violations of the standards and requirements; (11) return
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to practice on a full-time basis; (12) reinstatement of a
health practitioner's license; (13) use and reliance on a
private-sector vendor that provides diversion services;
(14) the extent to which participation in a diversion
program shall be kept confidential; (15) audits of a
private-sector vendor's performance and adherence to the
uniform standards and requirements; and (16) measurable
criteria and standards to determine how effective diversion
programs are in protecting patients and in assisting
licensees in recovering from substance abuse in the long
term.
As part of the SB 1441 implementation, the DCA convened the
Substance Abuse Coordination Committee (SACC), which consisted
of representatives from all of the healing arts boards. A
series of meetings, subject to the Bagley-Keene Open Meeting
Act, were held from 2009 to 2011 to discuss and develop the
standards. The "Uniform Substance Abuse Standards" ("Uniform
Standards") were finally adopted in early 2010, with the
exception of the frequency of drug testing. The Department
reconvened the SACC in March 2011, where a final vote was taken
on an amended schedule for drug testing frequency.
At that time, all of the health care boards were asked to adopt
and implement the standards. In response to questions regarding
whether adoption of the standards was optional or mandatory,
three different legal opinions were issued that opined that the
boards were mandated to adopt all of the standards.
The only standard that needed statutory authority dealt with the
cease practice requirement. SB 1172 (Negrete McLeod, Chapter
517, Statutes of 2010) was enacted, and among other provisions
required healing arts boards to order a licensee to cease
practice if the licensee tests positive for any prohibited
substance under the terms of the licensee's probation or
diversion program.
By 2013, two years after the final form was developed, MBC had
still not yet adopted the Uniform Standards. The prior confusion
and delay by MBC in adopting the standards in their entirety was
whether or not the board needed to reinstate its diversion
program in order to implement the Uniform Standards.
It was determined at the April 2013 MBC meeting that a specified
diversion program was not a condition necessary to implement the
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Uniform Standards, and therefore, MBC could immediately commence
the rulemaking process to adopt the new standards. The MBC
formally implemented the Uniform Standards in July 2014.
b) Post-Diversion at MBC. Without a diversion program,
impaired physicians with substance abuse issues must find
their own treatment facility for ssistance. MBC is not
made aware that the physician received treatment unless a
complaint is received, and the physician may present the
treatment as evidence in a disciplinary proceeding only if
he or she wishes. When MBC is made aware of substance
abuse, licensees are placed on formal probation, with terms
customized to fit the licensee's individual need. Typical
terms include participation in support group meetings,
random testing for drug and alcohol use, practice
restrictions, and/or medical or psychiatric treatment,
including psychotherapy.
MBC still retains the power to currently order biological fluid
testing as a condition of probation. Each physician must find a
collector to perform random drug testing as required by MBC's
Probation Unit, and the collector must meet the testing
requirements set out in the terms and conditions of probation.
If the physician tests positive, MBC issues a cease practice
order, if allowed in the condition of probation, until the Board
investigates and takes subsequent action. If the condition does
not authorize a cease practice order, the Board investigates
whether the physician is safe to practice medicine. If not, MBC
staff will seek an Interim Suspension Order or ask the physician
to agree not to practice via a stipulated agreement.
3.Current Diversion Discussion by MBC. At the October 2015 MBC
meeting, the Board discussed a new physician health program.
At the time, the board discussed recommendations about the
operation of the program by a private entity who would report
to the board when a physician is terminated from the program
for any reason. MBC voted to approve a set of elements for a
physician health program including:
Compliance with the Uniform Standards
Not residing within MBC
Run by a private/contracted non-profit entity
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Inclusion of adequate protocols for communication
with MBC
Participation in regularly scheduled meetings with
MBC
Allowance for both self-referrals and probationers
to participate
Reporting to MBC of any physician who is
terminated from the program, for any reason
No diversion - if a complaint/report is received,
MBC's enforcement process will be followed, regardless
of program participation
Maintenance of clear and regular communication to
MBC on the status of probationers in the Program
Participants share in cost of administering the
program
Repercussions if required audit finds the program
is not in compliance
Assurance that sufficient resources are available
to perform clinical roles and case management roles,
with sufficient expertise and experience (50 physicians
per case manager)
Limited to substance-abusing licensees
Strict documentation of monitoring
This bill complies with only 5 of the 14 elements MBC
determined were necessary for any physician health program.
4. Prior Related Legislation. AB 2346 (Gonzalez) of 2014 would
have authorized MBC to contract with a third party to
establish a voluntary Physician Health Program. ( Status:
The bill was held under submission in the Assembly Committee
on Appropriations.)
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SB 1483 (Steinberg) of 2012 would have created the Physician
Health, Awareness, and Monitoring Quality Act (PHAMQ Act) and
established a Physician Health Program for physicians,
medical students, and medical residents seeking treatment for
alcohol or substance abuse, a mental disorder, or other
health conditions. Created a Physician Health, Awareness,
and Monitoring Quality Oversight Committee within the DCA and
vested it with the duties and responsibilities for the
program, including entering into contracts. ( Status: The
bill was placed on inactive file on the Assembly Floor.)
SB 1172 (Negrete McLeod, Chapter 517, Statutes of 2010)
required healing arts boards to order a licensee to cease
practice if the licensee tests positive for any prohibited
substance under the terms of the licensee's probation or
diversion program
AB 526 (Fuentes) of 2009 would have established a voluntary
Physician Health Program within the State and Consumer
Services Agency to assist physicians and surgeons with
alcohol or substance abuse. ( Status: The bill was held
under submission in the Senate Committee on Appropriations.)
AB 214 (Fuentes) of 2008 would have established a voluntary
Physician Health Program within the Department of Public
Health to assist physicians and surgeons with alcohol or
substance abuse. ( Status: The measure was vetoed by
Governor Schwarzenegger who stated in his veto message that
"separating the operation of such programs from the Medical
Board of California 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)
established the SACC within DCA to develop uniform standards
and controls for programs dealing with licensees with
substance abuse problems.
AB 2443 (Nakanishi) of 2008 would have required the MBC to
establish a program to promote the well-being of physicians
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and surgeons. ( Status: The measure was vetoed by Governor
Schwarzenegger who stated in his veto 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 would have extended the sunset
date of the PDP to July 1, 2010. ( Status: The bill was held
under submission in the Assembly Committee on
Appropriations.)
SB 231 (Figueroa, Chapter 674, Statutes of 2005) established
a January 1, 2009, sunset date for the PDP.
5. Arguments in Support. CMA writes in support of this bill,
stating that it will bring California back in line with the
majority of other states and licensed professions who
recognize that wellness and treatment programs serve to
enhance public health as well as provide necessary resources
for those in need of help. CMA adds that "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 Hospital Association believes that this bill
would achieve legislation that is supportive of early
intervention, offers flexible treatment options and achieves
the goals of retaining valuable members of the medical
community while protecting the public.
6. Arguments in Opposition. The Center for Public Interest Law
(CPIL) is opposed to this bill, writing that there is no need
for it. CPIL states that through the program established in
this bill, MBC may never get records of drug test failures or
other noncompliance from the program and as currently
written, the bill lacks numerous critically important
provisions and safeguards, including several upon which the
MBC insisted at its October 2015 meeting. CPIL notes that
MBC and its prior program failed miserably at translating the
SB 1177 (Galgiani) Page 18
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concepts of physician rehabilitation or recovery from
substance abuse, a problem that is particularly serious in
the medical profession due to stress and access to drugs
inherent in the profession, into an effective program,
stating that "the State of California need not be involved in
an individual physician's personal journey to recovery -
especially when there are literally thousands of private
programs to assist substance-abusing individuals in this
effort". CPIL notes that the bill also lacks a number of key
provisions to assist substance-abusing physicians while
protecting patients from them. Specifically: the bill does
not require compliance with the Uniform Standards Regarding
Substance-Abusing Healing Arts Licensees developed by the
SACC; the bill fails to require the program to immediately
notify the MBC's enforcement program when a physician
participant relapses or violates probation terms by only
requiring notification to the referring entity; the bill
maintains confidentiality of program records which handcuffs
MBC in pursuing action; the bill does not preclude any
individual who sat on the former MBC Liaison Committee which
oversaw the former Diversion Program for 24 of its 27 years
during which time it failed all 5 audits conducted and the
bill fails to establish adequate funding for, and MBC control
of the size and staffing, of the program. CPIL states that
MBC's paramount priority is public protection, not physician
rehabilitation.
Consumers Union's Safe Patient Project (CUSPP) is also
opposed to this bill, expressing concerns that the bill would
allow physicians accused of substance abuse to be diverted
into a confidential substance abuse program and that
information will be kept secret from their patients. CUSPP
believes that as soon as a physician is required to enter a
substance abuse-related program, the information should be
publicly reported on the MBC website. CUSPP also believes
that the Uniform Standards, only adopted by MBC in July 2015,
should be followed in all matters relating to substance abuse
to ensure public protection. According to CUSPP, there is
nothing now that prevents doctors from seeking treatment with
complete confidentiality and there is no need to create a
special program that may interfere with the MBC's oversight
responsibilities.
Consumer Watchdog also opposes this bill, stating that
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physician substance abuse is an endemic, but too-often hidden
problem. According to Consumer Watchdog, only 47
disciplinary actions were taken by MBC in 2014-15 despite
upwards of 2,000 of the MBC's 110,000 licensees likely to be
abusing substances at any given time. Over a 10-year period,
MBC disciplined just 149 doctors for substance abuse, 27 for
using drugs or alcohol at work and 104 for DUIs. Consumer
Watchdog states that the former PDP created a revolving door
for drunk and high physicians who went in and out of
treatment, avoiding discipline while their patients were
unaware of their ongoing problem. Consumer Watchdog notes
that while patient safety demands the public and the Medical
Board to be informed of physician addiction problems, this
bill would ensure just the opposite since all program records
and documents would be confidential. The organization is
also concerned that the bill does not remove doctors from
practice when they enroll in rehab, does not require MBC to
be notified of physicians entering the program, contains no
consequences for a physician who fails the program, does not
require doctors to surrender their license if they repeatedly
fail treatment and does not comply with the Uniform
Standards.
7. Proposed Author's Amendments. In response to concerns that
this bill in its current form does not conform to the
elements MBC approved as necessary components of a physician
health and wellness program, the Author has agreed to accept
the following amendments.
On page 2, strike lines 1-26 inclusive
On page 3, strike lines 1-39 inclusive
On page 4, strike lines 1-37 inclusive
On page 5, strike lines 1-2
On page 5, in line 3, insert:
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
SB 1177 (Galgiani) Page 20
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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 to ensure
that the physician and surgeon remains able to practice
medicine in a manner which 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 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.
2341. (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.
SB 1177 (Galgiani) Page 21
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(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.
2342. (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.
(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, which 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 or surgeon who withdraws or
is terminated from the program to the board. This system
shall ensure absolute confidentiality in the communication to
SB 1177 (Galgiani) Page 22
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the board. The administering entity shall not provide this
information to any other individual or entity unless
authorized by the participating physician or 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.
(f) 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.
2343. (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:
SB 1177 (Galgiani) Page 23
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(1) A jointly-agreed upon plan and mandatory conditions and
procedures to monitor compliance with the program.
(2) Acknowledgement that the participant will comply with the
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) Acknowledgement that withdrawal or termination of a
physician and surgeon participant from the program shall be
reported to the board.
(6) Acknowledgement 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
SB 1177 (Galgiani) Page 24
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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.
2344. (a) The Physician and Surgeon Health and Wellness
Program Account is hereby established within the Medical
Board Contingent Fund. Any fee revenues generated pursuant to
this section shall be deposited in the Physician and Surgeon
Health and Wellness Program Account and shall be available,
upon appropriation of the Legislature, for the support of
this program.
(b) The board shall adopt regulations to determine the
appropriate fee a physician or surgeon participating in the
program shall provide to the board. The fees adopted by the
board shall be set at a level sufficient to cover all costs
of operating the program.
(c) Upon appropriation of the Legislature, the board may use
SB 1177 (Galgiani) Page 25
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monies from the Medical Board Contingent Fund to support the
initial costs to establish the program. Any such monies from
the Medical Board Contingent Fund shall be repaid with fees
assessed pursuant to subdivision (b).
2345. 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.
SUPPORT AND OPPOSITION:
Support:
California Medical Association (Sponsor)
California Hospital Association
California Psychiatric Association
Opposition:
Center for Public Interest Law
Consumer Attorneys of California
Consumers Union's Safe Patient Project
Consumer Watchdog
-- END --