BILL ANALYSIS
AB 526
Page A
Date of Hearing: April 21, 2009
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Mary Hayashi, Chair
AB 526 (Fuentes) - As Amended: April 16, 2009
SUBJECT : Public Protection and Physician Health Program Act of
2009.
SUMMARY : Establishes a voluntary physician health program
(PHP) within the State and Consumer Services Agency (SCSA) to
assist physicians and surgeons with alcohol or substance abuse.
Specifically, this bill :
1)Establishes the Public Protection and Physician Health
Committee (committee) within the SCSA, comprised of 14
members.
2)Requires the committee be appointed and hold its first meeting
no later than March 1, 2010.
3)Requires the committee to prepare and adopt rules and
regulations that provide clear guidance and measurable
outcomes to ensure patient safety and the health and wellness
of physicians and surgeons by June 30, 2010. These rules and
regulations shall include:
a) Minimum standards, criteria, and guidelines for the
acceptance, denial, referral to treatment, and monitoring
of physicians and surgeons in the physician health program;
b) Standards for requiring that a physician and surgeon
agree to cease practice to obtain appropriate treatment
services;
c) Criteria that must be met prior to a physician and
surgeon returning to practice;
AB 526
Page B
d) Standards, requirements, and procedures for random
testing for the use of banned substances and protocols to
follow if that use has occurred;
e) Worksite monitoring requirements and standards;
f) The manner, protocols, and timeliness of reports
required;
g) Appropriate requirements for clinical diagnostic
evaluations of program participants;
h) Requirements for a physician and surgeon's termination
from, and reinstatement to, the program;
i) 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;
j) Group meeting and other self-help requirements,
standards, protocols, and qualifications;
aa) Minimum standards and qualifications of any vendor,
monitor, provider, or entity contracted with by the SCSA;
bb) A requirement that all PHP services shall be available
to all licensed physicians and surgeons with a qualifying
illness;
cc) A requirement that any PHP shall do all of the
following:
i) 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
AB 526
Page C
dependency, chemical dependency, or mental disorders, and
the availability of the physician health program for
qualifying illnesses;
ii) Offer assistance to any person in referring a
physician and surgeon for purposes of assessment or
treatment, or both, for a qualifying illness;
iii) Monitor the status during treatment of a physician
and surgeon who enters treatment for a qualifying illness
pursuant to a written, voluntary agreement;
iv) 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;
v) Agree to accept referrals from the board to provide
monitoring services pursuant to a board order; and,
vi) Provide a clinical diagnostic evaluation of
physicians and surgeons entering the program.
dd) Rules and procedures to comply with auditing
requirements, as specified;
ee) 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; and,
ff) Any other provision necessary for the implementation of
this article.
4)Requires the committee to recommend one or more non-profit
AB 526
Page D
PHPs to the SCSA, and permits the SCSA to contract with the
recommended PHPs.
5)Requires the PHP to:
a) Report annually to the committee statistics, including:
i) The number of participants served;
ii) The number of compliant participants;
iii) The number of participants who have successfully
completed their agreement period; and,
iv) The number of participants reported to the board for
suspected noncompliance.
b) 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.
6)Requires SCSA, in conjunction with the committee, to monitor
compliance of the PGP, including making periodic inspections
and onsite visits.
7)Permits a physician and surgeon to enter into a voluntary
agreement with a PHP which must include a jointly agreed upon
treatment program and mandatory conditions and procedures to
monitor compliance with the treatment program.
8)Requires a physician and surgeon's voluntary participation in
the PHP to be confidential unless waived by the physician and
surgeon or otherwise specified.
AB 526
Page E
9)Prohibits any voluntary agreement from being considered a
disciplinary action or order by the Medical Board of
California (board), prohibits the agreement from being
disclosed to the board, and states that such agreement 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
investigation for conduct involving or alleging an
impairment adversely affecting the care and treatment of
patients; and,
c) The physician and surgeon is in compliance with the
treatment program and the conditions and procedures to
monitor compliance.
10)Requires each participant, prior to entering into a voluntary
agreement, to 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.
11)Permits a participant who discloses he or she is under
investigation by the board to participate in, and enter into a
voluntary agreement with, the PHP.
12)Permits the PHP to:
a) 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
AB 526
Page F
a result, whose competence or professional conduct is
reasonably likely to be detrimental to patient safety or to
the delivery of patient care; and,
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 PHP prior to
completion.
13)States that any oral or written information reported to the
board, as specified, shall remain confidential unless the
board has referred a complaint against the physician and
surgeon for investigation for conduct involving or alleging an
impairment adversely affecting the care and treatment of
patients.
14)Requires the committee to report to the SCSA and the
Legislature statistics received from the PHP.
15)Requires a physician and surgeon participating in a voluntary
agreement to 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 PHP.
16)Requires the board to increase licensing fees no less than
$22 and not to exceed 2.5% of the license fee to be expended
solely for the purposes of the PHP.
17)Requires the agency to contract for a biennial audit to
assess the effectiveness, efficiency, and overall performance
of the program and make recommendations.
AB 526
Page G
18)Sunsets on 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.
19)Makes Legislative findings and declarations.
20)Defines the following terms:
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;
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;
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 or subsequent
editions;
i) "Secretary" means the Secretary of State and Consumer
AB 526
Page H
Services; and,
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.
EXISTING LAW :
1)Provides for the licensure and regulation of physicians and
surgeons by the Medical Board of California (MBC) within the
Medical Practice Act.
2)Requires the MBC to oversee a diversion program for physicians
and surgeons with alcohol and substance abuse problems until
July 1, 2008, and after this date the MBC shall no longer be
responsible for a diversion program.
3)Requires the other following boards to establish criteria for
the acceptance, denial or termination of licentiates in a
diversion program:
a) The Osteopathic Medical Board of California for
osteopathic physicians and surgeons;
b) The Board of Registered Nursing for registered nurses;
c) The Board of Dental Examiners of California for
dentists;
d) The Board of Pharmacy to operate a recovery program for
pharmacists or intern pharmacists;
e) The Physical Therapy Board of California for physical
therapists;
f) The Veterinary Medical Board for veterinarians and
registered veterinary technicians; and,
g) The Physician Assistant Committee for physician
assistants.
FISCAL EFFECT : Unknown
COMMENTS :
AB 526
Page I
Purpose of this bill . According to the author's office, "Under
current law, there is no publicly accountable program that
provides a path for physicians to be referred to treatment and
be safely and effectively monitored for substance abuse or
mental illnesses that may impair their ability to practice
medicine safely. Without such a program, physicians are more
likely to hide these problems until they pose a risk of harm to
patients."
Background . The MBC is tasked with protecting the public.
California law states that "Protection of the public shall be
the highest priority of the Medical Board of California in
exercising its licensing, regulatory, and disciplinary
functions. Whenever the protection of the public is
inconsistent with other interests sought to be promoted, the
protection of the public shall be paramount." In deference to
this mandate, MBC voted unanimously on July 26, 2007, to end its
diversion program beginning July 1, 2008. This program,
established in 1980, was designed to rehabilitate doctors with
mental illness and substance abuse problems without endangering
public health and safety. The diversion program was audited
four times between 1982 and 2007 by the Bureau of State Audits
and once in 2005 by a legislatively created enforcement monitor;
all reports concluded that the program needed substantial
improvements.
The California Department of Consumer Affairs (DCA) is the
umbrella agency for most of the licensing bodies in California,
including MBC. While MBC housed its diversion program within
the board itself, other boards outsource these functions. DCA
currently manages a master contract with a publicly traded
corporation for six boards' and one committee's diversion
programs: the Board of Registered Nursing, the Dental Board of
California, the Board of Pharmacy, the Physical Therapy Board of
California, the Veterinary Medical Board of California, the
Osteopathic Medical Board of California, and the Physician
Assistant Committee. The individual boards oversee the programs,
but services are provided by the contractor.
California's diversion program and, by extension, the term
"diversion" is generally understood to refer to a program in
which doctors agree to a rehabilitative plan in lieu of
discipline for mental or substance abuse issues. Many states
operate similar programs, and the dominant term that has emerged
AB 526
Page J
to describe them is "physician health programs" (PHPs). This
term is not rigidly defined and may include not only diversion
and monitoring but broader health concepts, such as education
and outreach, as well.
The American Medical Association began encouraging states to
develop programs as early as 1974 to address physician
impairment, but the movement did not gain momentum until the
1990s. Today, 48 of 50 states have PHPs. The basic PHP process
consists of a referral, an investigation to see if participation
is warranted, followed by an intervention, evaluation, and
treatment based on a monitoring contract. The typical duration
of participation is five years.
Based on a 2007 nationwide survey, in cooperation with the
Federation of State Physician Health Programs, 54 percent of
PHPs are managed by independent, nonprofit foundations, and the
rest are run by state medical associations or regulatory
licensing boards. All the programs surveyed had some agreement,
formal or otherwise, with their state licensing board, and all
require random drug testing. Sources of funding are similarly
diverse; most PHPs are supported primarily by the state
licensing board, but malpractice insurance, participant fees,
private contributions, and foundations also make up their
budgets.
This bill is similar to AB 214 (Fuentes) of 2008, which was
vetoed by the Governor. The Governor's veto message stated,
"Physician health programs provide a valuable service and help
ensure public safety by encouraging doctors to obtain treatment
to overcome substance abuse or manage mental illness. However,
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."
AB 526 places responsibility for managing the relationship with
the PHP in the State and Consumer Services Agency, the agency
under which the MBC resides, instead of the Department of Public
Health.
AB 526
Page K
Arguments in support . The sponsors, the California Medical
Association writes, "The need for this bill comes from the
decision of the MBC to terminate its diversion program on June
31, 2008. However, this bill creates a program that is
significantly different than the former MBC program. The PHP
created by AB 526 does not divert or defer physicians from any
enforcement by the Medical Board. This program will be purely
voluntary for licensed physicians who recognize they may have an
addiction, disease, or mental illness and want to come forward
voluntarily to get the treatment and monitoring they need to
practice safely. The PHP is not an alternative to discipline
and all current laws leading to physician discipline are
maintained.
"In fact, the PHP will have an affirmative duty to inform the
MBC when a physician participant does not comply with program
components. Upon entry to the program, the physician
participant must sign an agreement to follow an immediate stop
practice order issued by the PHP. Further, the PHP must submit
to regular and independent audits to ensure clinical quality,
fiscal integrity, and compliance with appropriate monitoring and
reporting requirements, and that the PHP is fulfilling its
mandate of patient protection."
Double referred . This bill is double referred to Assembly
Health Committee.
Prior legislation . AB 214 (Fuentes) of 2008 was a similar bill
that was vetoed by the Governor.
REGISTERED SUPPORT / OPPOSITION :
Support
California Medical Association (sponsor)
The California Academy of Family Physicians (co-sponsor)
California Psychiatric Association (co-sponsor)
California Society of Addiction Medicine
Drug Policy Alliance
Opposition
None on file.
Analysis Prepared by : Sarah Huchel / B. & P. / (916) 319-3301
AB 526
Page L