BILL NUMBER: AB 526 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 16, 2009
AMENDED IN ASSEMBLY APRIL 14, 2009
INTRODUCED BY Assembly Member Fuentes
FEBRUARY 25, 2009
An act to add and repeal Article 14 (commencing with Section 2340)
of Chapter 5 of Division 2 of the Business and Professions Code,
relating to physicians and surgeons.
LEGISLATIVE COUNSEL'S DIGEST
AB 526, as amended, Fuentes. Public Protection and Physician
Health Program Act of 2009.
Existing law establishes in the Department of Consumer Affairs the
Substance Abuse Coordination Committee, comprised of the executive
officers of the department's healing arts boards, as specified, and a
designee of the State Department of Alcohol and Drug Programs.
Existing law requires the committee 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. The
Medical Practice Act establishes in the Department of Consumer
Affairs the Medical Board of California, which provides for the
licensure and regulation of physicians and surgeons.
This bill would enact the Public Protection and Physician Health
Program Act of 2009, which would, until January 1, 2021, establish
within the State and Consumer Services Agency the Public Protection
and Physician Health Committee, consisting of 14 members appointed by
specified entities, and would require the committee to be
appointed and to hold its first meeting by March 1, 2010, and would
require agency adoption of related rules and regulations by
June 30, 2010. The bill would require the committee to recommend to
the agency one or more physician health programs, and would authorize
the agency to contract , including on an interim basis, as
specified, with any qualified physician health program for
purposes of care and rehabilitation of physicians and surgeons with
alcohol or drug abuse or dependency problems or mental disorders as
specified. The bill would impose requirements on the physician health
program relating to, among other things, monitoring the status and
compliance of physicians and surgeons who enter treatment for a
qualifying illness, as defined, pursuant to written, voluntary
agreements, and would require the agency and committee to monitor
compliance with these requirements. The bill would provide that a
voluntary agreement to receive treatment would not be subject to
public disclosure or disclosure to the Medical Board of California,
except as specified. The bill would require
authorize the board to increase physician and surgeon licensure
and renewal fees for purposes of the act, and would establish the
Public Protection and Physician Health Program Trust Fund for deposit
of those funds, which would be subject to appropriation by the
Legislature. The bill would also require specified performance
audits.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and declares that:
(a) California has long valued high quality medical care for its
citizens and, through its regulatory and enforcement system, protects
health care consumers through the proper licensing and regulation of
physicians and surgeons to promote access to quality medical care.
The protection of the public from harm by physicians and surgeons who
may be impaired by alcohol or substance abuse or dependence or by a
mental disorder is paramount.
(b) Nevertheless, physicians and surgeons experience
health-related problems at the same frequency as the general
population, and many competent physicians and surgeons with illnesses
may or may not immediately experience impairment in their ability to
serve the public. It has been estimated that at least 10 percent of
the population struggles with alcohol or substance abuse or
dependence during their lifetime, which may, at some point, impact
approximately 12,500 of the state's 125,000 licensed physicians and
surgeons.
(c) It is in the best interests of the public and the medical
profession to provide a pathway for any currently licensed
profession to provide a pathway to recovery for any
licensed physician and surgeon that is currently
suffering from alcohol or substance abuse or dependence or a mental
disorder. The American Medical Association has recognized that it is
an expression of the highest meaning of professionalism for organized
medicine to take an active role in helping physicians and surgeons
to lead healthy lives in order to help their patients, and therefore,
it is appropriate for physicians and surgeons to assist in funding
such a program.
(d) While nearly every other state has a physician health program,
since 2007 California has been without any state program that
monitors physicians and surgeons who have independently obtained, or
should be encouraged to obtain, treatment for alcohol or substance
abuse or dependence or for a mental disorder, so that they do not
treat patients while impaired.
(e) It is essential for the public interest and the public health,
safety, and welfare to focus on early intervention, assessment,
referral to treatment, and monitoring of physicians and surgeons with
significant health impairments that may impact their ability to
practice safely. Such a program need not, and should not necessarily,
divert physicians and surgeons from the disciplinary system, but
instead focus on providing assistance before any harm to a patient
has occurred.
(f) Therefore, it is necessary to create a program in California
that will permit physicians and surgeons to obtain referral to
treatment and monitoring of alcohol or substance abuse or
dependence or a mental disorder, so that they do not treat patients
while impaired.
SEC. 2. Article 14 (commencing with Section 2340) is added to
Chapter 5 of Division 2 of the Business and Professions Code, to
read:
Article 14. Public Protection and Physician Health Program
2340. This article shall be known and may be cited as the Public
Protection and Physician Health Program Act of 2009.
2341. For purposes of this article, the following terms have the
following meanings:
(a) "Agency" means the State and Consumer Services Agency.
(b) "Board" means the Medical Board of California.
(c) "Committee" means the Public Protection and Physician Health
Committee established pursuant to Section 2342.
(d) "Impaired" or "impairment" means the inability to practice
medicine with reasonable skill and safety to patients by reason of
alcohol abuse, substance abuse, alcohol dependency, any other
substance dependency, or a mental disorder.
(e) "Participant" means a physician and surgeon enrolled in the
program pursuant to an agreement entered into as provided in Section
2345.
(f) "Physician health program" or "program" means the program for
the prevention, detection, intervention, monitoring, and referral to
treatment of impaired physicians and surgeons, and includes vendors,
providers, or entities contracted with by the agency pursuant to this
article.
(g) "Physician and surgeon" means a holder of a physician's and
surgeon's certificate.
(h) "Qualifying illness" means "alcohol or substance abuse,"
"alcohol or chemical dependency," or a "mental disorder" as those
terms are used in the Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition (DSM-IV) or subsequent editions.
(i) "Secretary" means the Secretary of State and Consumer
Services.
(j) "Treatment program" or "treatment" means the delivery of care
and rehabilitation services provided by an organization or persons
authorized by law to provide those services.
2342. (a) (1) There is hereby established within the State and
Consumer Services Agency the Public Protection and Physician Health
Committee. The committee shall be appointed and hold its first
meeting no later than March 1, 2010. The committee shall be
comprised of 14 members who shall be appointed as follows:
(A) Eight members appointed by the secretary, including the
following:
(i) Two members who are licensed mental health professionals with
knowledge and expertise in the identification and treatment of
substance abuse and mental disorders.
(ii) Six members who are physicians and surgeons with knowledge
and expertise in the identification and treatment of alcohol
dependence and substance abuse. One member shall be a designated
representative from a panel recommended by a nonprofit professional
association representing physicians and surgeons licensed in this
state with at least 25,000 members in all modes of practice and
specialties. The secretary shall fill one each of the remaining
appointments from among those individuals as may be recommended by
the California Society of Addiction Medicine, the California
Psychiatrist Association, and the California Hospital Association.
(B) Four members of the public appointed by the Governor, at least
one of whom shall have experience in advocating on behalf of
consumers of medical care in this state.
(C) One member of the public appointed by the Speaker of the
Assembly.
(D) One member of the public appointed by the Senate Committee on
Rules.
(2) (A) For the purpose of this subdivision, a public member may
not be any of the following:
(i) A current or former physician and surgeon or an immediate
family member of a physician and surgeon.
(ii) Currently or formerly employed by a physician and surgeon or
business providing or arranging for physician and surgeon services,
or have any financial interest in the business of a licensee.
(iii) An employee or agent or representative of any organization
representing physicians and surgeons.
(B) Each public member shall meet all of the requirements for
public membership on the board as set forth in Chapter 6 (commencing
with Section 450) of Division 1.
(b) Members of the committee shall serve without compensation, but
shall be reimbursed for any travel expenses necessary to conduct
committee business.
(c) Committee members shall serve terms of four years, and may be
reappointed. By lot, the committee shall stagger the terms of the
initial members appointed.
(d) The committee shall be subject to the Bagley-Keene Open
Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1
of Part 1 of Division 3 of Title 2 of the Government Code), and shall
prepare any additional recommended rules and
regulations necessary or advisable for the purpose of implementing
this article, subject to the Administrative Procedures Act (Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code). The rules and regulations shall include
appropriate minimum standards and requirements for referral to
treatment, and monitoring of participants in the physician health
program, and shall be written in a manner that provides clear
guidance and measurable outcomes to ensure patient safety and the
health and wellness of physicians and surgeons. The agency shall
adopt regulations for the implementation of this article, taking into
consideration the regulations recommended by the committee.
(e) The rules and regulations required by this section shall be
adopted not later than June 30, 2010, and shall, at a minimum, be
consistent with the uniform standards adopted pursuant to Section
315, and shall include all of the following:
(1) Minimum standards, criteria, and guidelines for the
acceptance, denial, referral to treatment, and monitoring of
physicians and surgeons in the physician health program.
(2) Standards for requiring that a physician and surgeon agree to
cease practice to obtain appropriate treatment services.
(3) Criteria that must be met prior to a physician and surgeon
returning to practice.
(4) Standards, requirements, and procedures for random testing for
the use of banned substances and protocols to follow if that use has
occurred.
(5) Worksite monitoring requirements and standards.
(6) The manner, protocols, and timeliness of reports required to
be made pursuant to Section 2345.
(7) Appropriate requirements for clinical diagnostic evaluations
of program participants.
(8) Requirements for a physician and surgeon's termination from,
and reinstatement to, the program.
(9) Requirements that govern the ability of the program to
communicate with a participant's employer or organized medical staff
about the participant's status and condition.
(10) Group meeting and other self-help requirements, standards,
protocols, and qualifications.
(11) Minimum standards and qualifications of any vendor, monitor,
provider, or entity contracted with by the agency pursuant to Section
2343.
(12) A requirement that all physician health program services
shall be available to all licensed physicians and surgeons with a
qualifying illness.
(13) A requirement that any physician health program shall do all
of the following:
(A) Promote, facilitate, or provide information that can be used
for the education of physicians and surgeons with respect to the
recognition and treatment of alcohol dependency, chemical dependency,
or mental disorders, and the availability of the physician health
program for qualifying illnesses.
(B) Offer assistance to any person in referring a physician and
surgeon for purposes of assessment or treatment, or both, for a
qualifying illness.
(C) Monitor the status during treatment of a physician and surgeon
who enters treatment for a qualifying illness pursuant to a written,
voluntary agreement.
(D) Monitor the compliance of a physician and surgeon who enters
into a written, voluntary agreement for a qualifying illness with the
physician health program setting forth a course of recovery.
(E) Agree to accept referrals from the board to provide monitoring
services pursuant to a board order.
(F) Provide a clinical diagnostic evaluation of physicians and
surgeons entering the program.
(14) Rules and procedures to comply with auditing requirements
pursuant to Section 2348.
(15) A definition of the standard of "reasonably likely to be
detrimental to patient safety or the delivery of patient care,"
relying, to the extent practicable, on standards used by hospitals,
medical groups, and other employers of physicians and surgeons.
(16) Any other provision necessary for the implementation of this
article.
2343. (a) On and after July 1, 2010, upon adoption of the rules
and regulations required by Section 2342, the committee shall
recommend one or more physician health programs to the agency, and
the agency may contract with any qualified physician health program.
The physician health program shall be a nonprofit corporation
organized under Section 501(c)(3) of Title 26 of the United States
Code. The chief executive officer shall have expertise in the areas
of alcohol abuse, substance abuse, alcohol dependency, other chemical
dependencies, and mental disorders. In order to expedite the
delivery of physician health program services established by this
article, the agency may contract with an entity meeting the minimum
standards and requirements set forth in subdivision (e) of
Section 2342 on an interim basis prior to the adoption of any
additional rules and regulations required to be adopted pursuant to
subdivision (d) of Section 2342. The agency may extend the contract
when the rules and regulations are adopted, provided that the
physician health program meets the requirements in those rules and
regulations.
(b) Any contract entered into pursuant to this article shall
comply with all rules and regulations required to be adopted pursuant
to this article. No entity shall be eligible to provide the services
of the physician health program that does not meet the minimum
standards, criteria, and guidelines contained in those rules and
regulations.
(c) The contract entered into pursuant to this article shall also
require the contracting entity to do both of the following:
(1) Report annually to the committee statistics, including the
number of participants served, the number of compliant participants,
the number of participants who have successfully completed their
agreement period, and the number of participants reported to the
board for suspected noncompliance; provided, however, that in making
that report, the physician health program shall not disclose any
personally identifiable information relating to any physician and
surgeon participating in a voluntary agreement as provided in this
article.
(2) Agree to submit to periodic audits and inspections of all
operations, records, and management related to the physician health
program to ensure compliance with the requirements of this article
and its implementing rules and regulations.
(d) In addition to the requirements of Section 2348, the agency,
in conjunction with the committee, shall monitor compliance of the
physician health program with the requirements of this article and
its implementing regulations, including making periodic inspections
and onsite visits with any entity contracted to provide physician
health program services.
2344. The agency has the sole discretion to contract with a
physician health program for licensees of the board and no provision
of this article may be construed to entitle any physician and surgeon
to the creation or designation of a physician health program for any
individual qualifying illness or group of qualifying illnesses.
2345. (a) In order to encourage voluntary participation in
monitored alcohol or chemical dependency or mental disorder treatment
programs, and in recognition of the fact that mental disorders,
alcohol dependency, and chemical dependency are illnesses, a
physician and surgeon, certified or otherwise lawfully practicing in
this state, may enter into a voluntary agreement with a physician
health program. The agreement between the physician and surgeon and
the physician health program shall include a jointly agreed upon
treatment program and mandatory conditions and procedures to monitor
compliance with the treatment program, including, but not limited to,
an agreement to cease practice, as defined by the rules and
regulations adopted pursuant to Section 2342. Except as provided in
subdivisions (b), (c), (d), and (e), a physician and surgeon's
participation in the physician health program pursuant to a voluntary
agreement shall be confidential unless waived by the physician and
surgeon.
(b) (1) Any voluntary agreement entered into pursuant to this
section shall not be considered a disciplinary action or order by the
board, shall not be disclosed to the board, and shall not be public
information if all of the following are true:
(A) The voluntary agreement is the result of the physician and
surgeon self-enrolling or voluntarily participating in the physician
health program.
(B) The board has not referred a complaint against the physician
and surgeon to a district office of the board for
simultaneous investigation jointly assigned to an investigator and to
the deputy attorney general in the Health Quality Enforcement
Section pursuant to Section 12529.6 of the Government Code for
conduct investigation for conduct involving or
alleging an impairment adversely affecting the care and treatment of
patients.
(C) The physician and surgeon is in compliance with the treatment
program and the conditions and procedures to monitor compliance.
(2) (A) Each participant, prior to entering into the voluntary
agreement described in paragraph (1), shall disclose to the committee
whether he or she is under investigation by the board. If a
participant fails to disclose such an investigation, upon enrollment
or at any time while a participant, the participant shall be
terminated from the program. For those purposes, the committee
shall periodically request from the board copies of recent
shall regularly monitor recent accusations filed
against physicians and surgeons and shall compare the names of
physicians and surgeons subject to accusation with the names of
program participants.
(B) Notwithstanding subparagraph (A), a participant who is under
investigation by the board and who makes the disclosure required in
subparagraph (A) may participate in, and enter into a voluntary
agreement with, the physician health program.
(c) (1) If a physician and surgeon enters into a voluntary
agreement with the physician health program pursuant to this article,
the physician health program shall do both of the following:
(A) In addition to complying with any other duty imposed by law,
report to the committee the name of and results of any contact or
information received regarding a physician and surgeon who is
suspected of being, or is, impaired and, as a result, whose
competence or professional conduct is reasonably likely to be
detrimental to patient safety or to the delivery of patient care.
(B) Report to the committee if the physician and surgeon fails to
cooperate with any of the requirements of the physician health
program, fails to cease practice when required, fails to submit to
evaluation, treatment, or biological fluid testing when required, or
whose impairment is not substantially alleviated through treatment,
or who, in the opinion of the physician health program, is unable to
practice medicine with reasonable skill and safety , or who
withdraws or is terminated from the physician health program prior to
completion .
(2) Within 48 hours of receiving a report pursuant to paragraph
(1), the committee shall make a determination as to whether the
competence or professional conduct of the physician and surgeon is
reasonably likely to be detrimental to patient safety or to the
delivery of patient care, and, if so, refer the matter to the board
consistent with rules and regulations adopted by the agency. Upon
receiving a referral pursuant to this paragraph, the board shall take
immediate action and may initiate proceedings to seek a temporary
restraining order or interim suspension order as provided in this
division.
(d) Except as provided in subdivisions (b), (c), and (e), and this
subdivision, any oral or written information reported to the board
pursuant to this section, including, but not limited to, any
physician and surgeon's participation in the physician health program
and any voluntary agreement entered into pursuant to this article,
shall remain confidential as provided in subdivision (c) of Section
800, and shall not constitute a waiver of any existing evidentiary
privileges under any other provision or rule of law. However, this
subdivision shall not apply if the board has referred a complaint
against the physician and surgeon to a district office of the board
for simultaneous investigation jointly assigned to an
investigator and to the deputy attorney general in the Health Quality
Enforcement Section pursuant to Section 12529.6 of the Government
Code for conduct involving or alleging an impairment
for investigation for conduct involving or alleging an impairment
adversely affecting the care and treatment of patients.
(e) Nothing in this section prohibits, requires, or otherwise
affects the discovery or admissibility of evidence in an action
against a physician and surgeon based on acts or omissions within the
course and scope of his or her practice.
(f) Any information received, developed, or maintained by the
agency regarding a physician and surgeon in the program shall not be
used for any other purpose.
2346. The committee shall report to the agency statistics
received from the physician health program pursuant to Section 2343,
and the agency shall, thereafter, report to the Legislature the
number of individuals served, the number of compliant individuals,
the number of individuals who have successfully completed their
agreement period, and the number of individuals reported to the board
for suspected noncompliance; provided, however, that in making that
report the agency shall not disclose any personally identifiable
information relating to any physician and surgeon participating in a
voluntary agreement as provided herein.
2347. (a) A physician and surgeon participating in a voluntary
agreement shall be responsible for all expenses relating to chemical
or biological fluid testing, treatment, and recovery as provided in
the written agreement between the physician and surgeon and the
physician health program.
(b) In addition to the fees charged for the initial issuance or
biennial renewal of a physician and surgeon's certificate pursuant to
Section 2435, and at the time those fees are charged, the board
shall may include a surcharge of not
less than twenty-two dollars ($22) and not to exceed an amount equal
to 2.5 percent of the fee set pursuant to Section 2435, which shall
be expended solely for the purposes of this article. The
If the board includes a surcharge, the board
shall collect this surcharge and cause it to be transferred monthly
to the trust fund established pursuant to subdivision (c). This
amount shall be separately identified on the fee statement provided
to physicians and surgeons as being imposed pursuant to this article.
The board may include a conspicuous statement indicating that the
Public Protection and Physician Health Program is not a program of
the board and the collection of this fee does not, nor shall it be
construed to, constitute the board's endorsement of, support for,
control of, or affiliation with, the program.
(c) There is hereby established in the State Treasury the Public
Protection and Physician Health Program Trust Fund into which all
funds collected pursuant to this section shall be deposited. These
funds shall be used, upon appropriation in the annual Budget Act,
only for the purposes of this article.
(d) Nothing in this section is intended to limit the amount of
funding that may be provided for the purposes of this article. In
addition to funds appropriated in the annual Budget Act, additional
funding from private or other sources may be used to ensure that no
person is denied access to the services established by this program
due to a lack of available funding.
(e) All costs of the committee and program established pursuant to
this article shall be paid out of the funds collected pursuant to
this section.
2348. (a) The agency shall biennially contract to perform a
thorough audit of the effectiveness, efficiency, and overall
performance of the program and its vendors. The agency may contract
with a third party to conduct the performance audit, except the third
party may not be a person or entity that regularly testifies before
the board. This section is not intended to reduce the number of
audits the agency or board may otherwise conduct.
(b) The audit shall make recommendations regarding the
continuation of this program and this article and shall suggest any
changes or reforms required to ensure that individuals participating
in the program are appropriately monitored and the public is
protected from physicians and surgeons who are impaired due to
alcohol or drug abuse or dependency or mental disorder. Any person
conducting the audit required by 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 that is identifiable to any program participant.
(c) If, during the course of an audit, the auditor discovers that
a participant has harmed a patient, or a patient has died while being
treated by a participant, the auditor shall include that information
in his or her audit, and shall investigate and report on how that
participant was dealt with by the program.
(d) A copy of the audit shall be made available to the public by
posting a link to the audit on the agency's Internet Web site
homepage no less than 10 business days after publication of the
audit. Copies of the audit shall also be provided to the Assembly and
Senate Committees on Business and Professions and the Assembly and
Senate Committees on Health within 10 business days of its
publication.
2349. This article shall remain in effect only until January 1,
2021, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2021, deletes or extends
that date.