BILL ANALYSIS Ó
SB 1177
Page 1
SENATE THIRD READING
SB
1177 (Galgiani)
As Amended August 1, 2016
Majority vote
SENATE VOTE: 39-0
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Business & |13-0 |Salas, Brough, Baker, | |
|Professions | |Bloom, Campos, | |
| | |Chávez, Dodd, Eggman, | |
| | |Gatto, Gomez, Holden, | |
| | |Jones, Wood | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |20-0 |Gonzalez, Bigelow, | |
| | |Bloom, Bonilla, | |
| | |Bonta, Calderon, | |
| | |Chang, Daly, Eggman, | |
| | |Gallagher, Eduardo | |
| | |Garcia, Holden, | |
| | |Jones, Obernolte, | |
| | |Quirk, Santiago, | |
| | |Wagner, Weber, Wood, | |
| | |McCarty | |
SB 1177
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SUMMARY: Authorizes the Medical Board of California (MBC) to
contract with a private third party to allow physicians and
surgeons to participate in a Physician Health and Wellness
Program (PHWP) to provide treatment for substance abuse
disorders. Specifically, this bill:
1)Permits the MBC to establish a PHWP 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.
2)Defines "program" as the PHWP.
3)Requires a PHWP to:
a) Provide for the education of all licensed physicians and
surgeons with respect to the recognition and prevention of
physical, emotional, and psychological problems;
b) Offer assistance to a physician and surgeon in
identifying substance abuse problems;
c) 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;
d) Provide for the confidential participation by a
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physician and surgeon with substance abuse issues who does
not have a restriction on his or her practice related to
those substance abuse issues, as specified; and,
e) Comply with the Uniform Standards Regarding
Substance-Abusing Healing Arts Licensees as adopted by the
Substance Abuse Coordination Committee (SACC) of the
Department of Consumer Affairs (DCA).
4)Specifies that if the MBC establishes a PHWP, the MBC shall
contract for the program's administration with a private
third-party independent administering entity pursuant to a
request for proposals.
5)Requires the administering entity to:
a) Have expertise and experience in the areas of substance
or alcohol abuse in healing arts professionals;
b) 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;
c) Provide counseling and support for the physician and
surgeon and for the family of any physician and surgeon
referred for treatment;
d) Make their services available to all licensed California
physicians and surgeons, including those who self-refer to
the PHWP; and,
e) Have a system for immediately reporting a physician and
surgeon who withdraws or is terminated from the PHWP to the
MBC. This system shall ensure absolute confidentiality in
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the communication to the MBC. The administering entity
shall not provide this information to any other individual
or entity unless authorized by the participating physician
and surgeon.
6)Specifies that the contract shall require the administering
entity to do the following:
a) Provide regular communication to the MBC, including
annual reports to the MBC with PHWP statistics, including,
but not limited to, the number of participants currently in
the PHWP, the number of participants referred by the MBC as
a condition of probation, the number of participants who
have successfully completed their agreement period, and the
number of participants terminated from the PHWP. In making
reports, the administering entity shall not disclose any
personally identifiable information relating to any
participant;
b) Submit to periodic audits and inspections of all
operations, records, and management related to the PHWP 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 PHWP
participant; and,
c) Allow the MBC to terminate the contract in the event
that the MBC determines the administering entity is not in
compliance with the requirements of the PHWP or contract
entered into with the MBC.
7)Indicates that a physician and surgeon shall, as a condition
of participation in the PHWP, enter into an individual
agreement with the PHWP and agree to pay expenses related to
treatment, monitoring, laboratory tests, and other activities
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specified in the participant's written agreement. The
agreement shall include all of the following:
a) A jointly agreed upon plan and mandatory conditions and
procedures to monitor compliance with the PHWP;
b) Compliance with terms and conditions of treatment and
monitoring;
c) Criteria for PHWP completion;
d) Criteria for termination of a physician and surgeon
participant from the PHWP;
e) Acknowledgment that withdrawal or termination of a
physician and surgeon participant from the PHWP shall be
reported to the MBC; and,
f) Acknowledgment that expenses related to treatment,
monitoring, laboratory tests, and other activities
specified by the PHWP shall be paid by the physician and
surgeon participant.
8)Specifies that any agreement entered into pursuant to this
section shall not be considered a disciplinary action or order
by the MBC and shall not be disclosed to the MBC if both of
the following apply:
a) The physician and surgeon did not enroll in the PHWP as
a condition of probation or as a result of an action by the
MBC; and,
b) The physician and surgeon is in compliance with the
conditions and procedures in the agreement.
9)States that any oral or written information reported to the
MBC shall remain confidential and does not constitute a waiver
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of any existing evidentiary privileges under any other
provision or rule of law. However, confidentiality regarding
the physician and surgeon's participation in the PHWP and
related records do not apply if the MBC has referred a
participant as a condition of probation.
10)Specifies that nothing in this section 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.
11)States that participation in the PHWP is not a defense to any
disciplinary action that may be taken by the MBC. This
section does not preclude the MBC from commencing disciplinary
action against a physician and surgeon who is terminated
unsuccessfully from the PHWP. However, that disciplinary
action may not include as evidence any confidential
information unless authorized by this section.
12)Establishes the Physician and Surgeon Health and Wellness
Program Account within the Contingent Fund of the MBC.
13)Specifies that any fees collected by the MBC, as specified,
must 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.
14)States that the MBC shall adopt regulations to determine the
appropriate fee that a physician and surgeon participating in
the PHWP is required to provide to the MBC. The fee amount
adopted by the MBC must be set at a level sufficient to cover
all costs for participating in the PHWP including any
administrative costs incurred by the board to administer the
PHWP.
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15)Permits the MBC, subject to appropriation by the Legislature,
to use moneys from the Contingent Fund of the MBC to support
the initial costs for the MBC to establish the PHWP under this
article, except these moneys is not to be used to cover any
costs for individual physician and surgeon participation in
the PHWP.
FISCAL EFFECT: According to the Assembly Appropriations
Committee:
1)Assuming approximately 400 to 500 licensees will participate
in the program, and assuming an annual cost of $4,000 per
individual (based on current DCA diversion contract rate per
participant), the cost would be approximately $1.6 million to
$2 million per year to contract with a third-party vendor to
administer the program (Physician and Surgeon Health and
Wellness Program Account, created by this bill and funded by
fees adopted pursuant to this bill). The actual treatment
costs are required to be paid privately by program
participants, and are not included here.
2)Approximately $105,000 per year, plus an additional $8,000 for
the first year of funding, for staff to set up and initiate
the program and then to provide ongoing support and coordinate
with the third-party vendor to implement the program
(Contingent Fund of the MBC for first year; Physician and
Surgeon Health and Wellness Program Account on an ongoing
basis thereafter).
3)Unknown, likely minor, one-time information technology costs
(Contingent Fund of the MBC).
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COMMENTS:
Purpose. This bill is sponsored by the California Medical
Association. According to the author, "As in other states,
[this bill] will establish a much-needed statewide Physician
Health and Wellness Program in California, which is essential
for increasing patient safety through early identification of
physicians with substance abuse disorders. It will ensure
resources are available to increase awareness, coordination, and
monitoring of treatment for physicians, and will ensure the
[MBC] can take decisive action to protect patients."
Background. Substance Misuse, Abuse, and Addiction among Health
Care Licensees. The distinctions between misuse, abuse, and
addiction are important. Substance misuse is defined as
inappropriate use of any substance, such as alcohol, a street
drug, or misuse of a prescription or over the counter drug.
Substance abuse has been described as unreasonable ingestion of
a mind-altering substance that causes harm or injury to the
health care professional. Addiction is a compulsive or chronic
need for, or an active addiction to, alcohol or drugs.
Healthcare professionals are at particular risk for substance
misuse, abuse, and addiction; however, limited data is available
on the rates of incidence because abusing or addicted health
care professionals rarely report abuse or addiction for fear of
disciplinary action against their license to practice. It is
also difficult to gather accurate statistics because employers
often fail to recognize the signs and symptoms of these
disorders. Available literature estimates that between 10% to
15% of health care professionals are afflicted with alcohol or
drug addiction.
Health care professionals are at particular risk for
alcohol/drug misuse, abuse, or addiction for many reasons.
Drugs are one of the primary tools used by health care
professionals to treat and help their patients. They prescribe,
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administer, and dispense medications every day. In addition,
their exposure and accessibility to mind-altering medications,
pharmacological knowledge of the drugs that fosters a false
sense of control, and a tendency to self-treat or self-medicate
are contributing factors. (Nebraska Department of Health and
Human Services, Alcohol and Drug Abuse and Addiction: A
Healthcare Professional's Guide, 2011).
In a study conducted by Cicala (2003), 8% to 12% of physicians
were estimated to be at risk of developing a substance use
problem. Specifically, emergency medicine and anesthesiology
tend to be the highest-risk specialties for substance use
problems among physicians. Similarly, Trinkoff and Storr (1998)
conducted an investigation where substance use was studied among
nurses. Thirty-two percent of 4,438 respondents indicated some
substance abuse. Emergency room nurses were 3.5 times as likely
to abuse substances as general practice or pediatric nurses.
Oncology or administrative nurses were twice as likely to
binge-drink. Psychiatric nurses were 2.5 times as likely as
general practice nurses to smoke.
Diversion and Physician Health Programs. Diversion programs are
established by enforcement entities to allow professional
licensees the opportunity to address their substance misuse,
abuse or addiction, in lieu of automatic discipline. Physician
health programs (PHPs) offer the same services to enrollees as
diversion programs, but not all PHPs provide the ability for
certain enrollees to "divert" automatic discipline from
enforcement entities by instead enrolling, participating, and
completing treatment. In 1974, the American Medical Association
and the Federation of State Medical Boards advised state medical
boards on the importance of developing PHPs. By 1980, almost
all states had authorized or implemented PHPs. To date, PHPs
operate in 47 states and the District of Columbia.
Several studies have reported recovery rates between 70% to 90%
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for physicians with substance use problems monitored by PHPs
(DuPont, R.L. et al., 2009; McLellan, A.T., 2008). Other
studies cite abstinence rates of almost 90% five years after
physicians completed PHPs (Institute for Behavior and Health,
Creating a New Standard for Addiction Treatment Outcomes, 2014).
Diversion Programs in California. Across the state, there are
multiple programs including seven programs housed within the DCA
and one program, the Lawyer Assistance Program, operated by the
State Bar of California.
The BPC requires seven different boards to establish diversion
programs which will allow the boards to identify and
rehabilitate licensees whose competency may be impaired due to
substance misuse, abuse, or addiction. The programs are
intended to provide treatment to licenses so that they can
return to practice in a manner that will not endanger the
public's health and safety. Most of these boards specify in
their practice acts that participation in the diversion programs
is a voluntary alternative approach to traditional disciplinary
actions. The following boards are authorized to administer a
diversion program via statute:
1)The Dental Board of California
2)The Osteopathic Medical Board of California
3)The Physical Therapy Board of California
4)The Board of Registered Nursing
5)The Physician Assistant Board
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6)The Board of Pharmacy
7)The Veterinary Medical Board
The MBC's Diversion Program. The MBC previously operated a
diversion program from 1980 until 2008. The program re-routed
physicians with substance use problems out of the enforcement
program and into a monitoring program intended to assist them in
their recovery. Participants were required to adhere to an
agreement for a five-year monitoring program, including random
bodily fluids testing, mandatory group meeting attendance,
worksite monitoring, and often substance abuse treatment and/or
psychotherapy. Those who complied with these terms and
maintained sobriety for three years were discharged from the
program without facing disciplinary action. Those who violated
the agreement were referred to the enforcement program for
discipline. Many of the physicians in the program retained full
and unrestricted medical licenses during their participation in
the diversion program and their participation was confidential.
Audit of the MBC's Diversion Program. The MBC's diversion
program was audited five times with its first audit commencing
in 2003 as a result of a legislatively mandated enforcement
monitor who was placed at the MBC to monitor its oversight of
the diversion program (SB 1950 (Figueroa), Chapter 1085, Statues
of 2002). The fifth audit was completed in 2007 by the Bureau
of State Audits.
In a report of the first audit, it was recommended that MBC
consider contracting the program out to another entity due to
the MBC's problems with administering the program. All
subsequent audits resulted in reports that highlighted the MBC's
difficulty with establishing and maintaining sufficient quality
controls in administering the program, and pointed out problems
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including insufficient staff, inadequate monitoring and
reporting mechanisms, and deficient guidance. The MBC did not
make all of the recommended changes from the various audits.
The program was discontinued July 1, 2008.
Uniform Standards Regarding Substance-Abusing Healing Arts
Licensees (Uniform Standards). Senate Bill 1441
(Ridley-Thomas), Chapter 548, Statutes of 2008, created the
SACC. The SACC was required to formulate uniform and specific
standards in specified areas that each healing arts board should
use when dealing with licensees with substance use problems,
regardless if the board decided to have a formal program. The
standards were finalized in April of 2011. Since then, there
have been three separate legal opinions that concluded that the
use of the Uniform Standards by the DCA's healing arts boards is
mandatory.
The MBC stated at its October 29, 2015 board meeting that any
PHWP operated by the MBC should comply with the Uniform
Standards. It further stated in its letter of support that it
interprets the PHWP described in this bill as being compliant
with the Uniform Standards.
Analysis Prepared by:
Le Ondra Clark Harvey Ph.D. / B. & P. / (916)
319-3301 FN:
0004044
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