BILL ANALYSIS Ó
SENATE COMMITTEE ON
BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
Senator Jerry Hill, Chair
2015 - 2016 Regular
Bill No: SB 1177 Hearing Date: August 25,
2016
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|Author: |Galgiani |
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|Version: |August 18, 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 (PHWP) for
the early identification and appropriate interventions to
support a licensee in his or her rehabilitation from substance
abuse and authorizes MBC to contract with an independent entity
to administer the PHWP.
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 (Uniform 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, 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
competency may be impaired due to abuse of dangerous
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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)
12)Requires a report to be filed by a peer review body to an
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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. (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
cases involving drug or alcohol abuse by a physician and
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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 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.
2)Requires MBC, if it establishes a PHWP, to contract for
administration with an independent administering entity
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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;
b) Offer assistance to licensees in identifying substance
abuse problems;
c) Evaluate the extent of substance abuse problems and
refer licensees to the appropriate treatment by executing a
written agreement with a participant;
d) Provide for the confidential participation by a licensee
with substance abuse issues who does not have a restriction
on his or her practice related to those substance abuse
issues. Authorizes MBC to inquire of the program whether a
licensee is enrolled, if an investigation of licensee
occurs after the licensee has enrolled in the program; and
e) Comply with the Uniform Standards as adopted by the
SACC.
1)Requires the administering entity to have expertise and
experience in the areas of substance or alcohol abuse in
healing arts professionals, identify and use a statewide
treatment resource network including treatment and screening
programs and support groups, establish a process for
evaluating these treatment and screening programs, provide
counseling and support for the licensee and for the family of
any physician and surgeon referred for treatment, make their
services available to all licensees, including those who
self-refer and have a system for immediately reporting a
licensee to MBC, including, but not limited to, a physician
and surgeon who withdraws or is terminated from the program.
Requires this system of reporting to ensure absolute
confidentiality in the communication to the MBC and prohibits
the administering entity from providing this information to
any other individual or entity unless authorized by the
participating licensee.
2)Specifies that the contract with MBC and an administering
entity shall require the administering entity to provide
regular communication to MBC, including annual reports to the
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board with program statistics that do not include personally
identifiable information relating to any participant.
Requires the administering entity to submit to periodic audits
and inspections of all operations, records, and management
that maintain the confidentiality of all records reviewed and
information obtained in the course of conducting the audit.
Authorizes MBC to terminate the contract.
3)Requires physician and surgeon participants to 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 which shall include:
a) A jointly agreed-upon plan and mandatory conditions and
procedures to monitor compliance with the program;
b) Compliance with terms and conditions of treatment and
monitoring;
c) Criteria for program completion;
d) Criteria for termination of a participant from the
program;
e) Acknowledgment that withdrawal or termination of a
physician and surgeon participant from the program shall be
reported to MBC.
1)States that any agreement entered shall not be considered a
disciplinary action or order by MBC and shall not be disclosed
to MBC if the physician and surgeon did not enroll in the
program as a condition of probation or as a result of a MBC
action and if the physician and surgeon is in compliance with
the conditions and procedures in the agreement. States that
any oral or written information reported to MBC shall remain
confidential and shall not constitute a waiver of any existing
evidentiary privileges, except that confidentiality regarding
participation in the program and related records shall not
apply if MBC has referred a participant as a condition of
probation. States that nothing in this section prohibits,
requires, or otherwise affects the discovery or admissibility
of evidence in an action by MBC against a physician and
surgeon based on acts or omissions that are alleged to be
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grounds for discipline.
2)Provides that participation in the program shall not be a
defense to any disciplinary action that may be taken by MBC
and clarifies that MBC is not precluded from commencing
disciplinary action against a physician and surgeon who is
terminated unsuccessfully from the program.
3)Establishes the PHWP Account is the Contingent Fund of MBC,
funds from which shall be available upon appropriation by the
Legislature for the support of the PHWP. Requires MBC to
adopt regulations to determine the appropriate fee that a
participating licensee shall provide MBC and states that the
fee must cover all costs for participating in the program,
including any administrative costs incurred by MBC to
administer the program.
FISCAL
EFFECT:
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
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
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(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
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
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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
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
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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
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
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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
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
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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 Standards to 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 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 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.
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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
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.
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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.
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.
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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.
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.)
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
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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
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. Supporters state that this bill 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.
Supporters note 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
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the public.
MBC writes that the PHWP proposed in this bill is not a
diversion program, will not divert physicians from discipline
and notes that the bill requires compliance with the Uniform
Standards as well as requires any participant who is
terminated or withdraws from the PHWP to be reported to MBC,
very important elements to the board.
6. Arguments in Opposition. Consumers Union's Safe Patient
Project (CU SPP) is concerned that this 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. According to the
group, "As soon as a physician is required to enter a
substance abuse-related program that information should be
publicly reported on the MBC website. Further, substance
abusing physicians who have been referred by the MBC into
treatment should be required to disclose that to their
patients. Additionally, whether or not substance abuse is
involved, all physicians should be subject, at minimum, to
the same MBC public reporting requirements, i.e. the
involvement of substance abuse should never be a cause to
allow secrecy or reduce public reporting requirements, such
as information about actions taken by the board on doctors'
online profiles." CU SPP additionally writes that the
program included in this legislation for substance abusing
physicians should not be associated with the California
Medical Association or with any nonprofit associated with the
CMA or with any entity associated with past administrators.
According to CU SPP, "This 'fox guarding the chicken house'
approach led to the failed model the MBC used in the past and
should not be repeated."
SUPPORT AND OPPOSITION:
Support:
California Chapter of the American College of Emergency
Physicians
California Health Advocates
California Hospital Association
California Primary Care Association
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Medical Board of California
Union of American Physicians and Dentists
Neutral:
Consumer Watchdog
Opposition:
Center for Public Interest Law
Consumers Union Safe Patient Project
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