BILL ANALYSIS
AB 526
Page 1
Date of Hearing: April 28, 2009
ASSEMBLY COMMITTEE ON HEALTH
Dave Jones, 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 impaired by alcohol and substance
abuse or mental health disorders. Specifically, this bill :
1)Establishes the Public Protection and Physician Health
Committee (committee) within the SCSA, comprised of 14
appointed members, as specified.
2)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. Requires the
rules and regulations to include:
a) Minimum standards, criteria, and guidelines for the
acceptance, denial, referral to treatment, and monitoring
of physicians and surgeons in the PHP;
b) Standards for requiring that a physician and surgeon
(physician) agree to cease practice to obtain appropriate
treatment services;
c) Criteria that must be met prior to a physician returning
to practice;
d) Standards, requirements, and procedures for random
testing for the use of banned substances and protocols to
follow if that use has occurred;
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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'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 must be available to
all licensed physicians with a qualifying illness;
cc) A requirement that any PHP must do all of the following:
i) Promote, facilitate, or provide information that can
be used for the education of physicians with respect to
the recognition and treatment of alcohol dependency,
chemical dependency, or mental disorders, and the
availability of the PHP for qualifying illnesses;
ii) Offer assistance to any person in referring a
physician for purposes of assessment or treatment, or
both, for a qualifying illness;
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iii) Monitor the status during treatment of a physician
who enters treatment for a qualifying illness pursuant to
a written, voluntary agreement;
iv) Monitor the compliance of a physician who enters
into a written, voluntary agreement for a qualifying
illness with the PHP setting forth a course of recovery;
v) Agree to accept referrals from the Medical Board of
California (MBC) to provide monitoring services pursuant
to a MBC order; and,
vi) Provide a clinical diagnostic evaluation of
physicians 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,
ff) Any other provision necessary for the implementation of
this article.
3)Requires the committee, on or after July 1, 2010, to recommend
one or more non-profit PHPs to the SCSA, and permits the SCSA
to contract with the recommended PHPs.
4)Requires the PHP to:
a) Report the following statistics annually to the
committee:
i) The number of participants served;
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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 MBC for
suspected noncompliance.
b) Agree to submit to periodic audits and inspections of
all operations, records, and management related to the PHP
to ensure compliance with the requirements of this article
and it's implementing rules and regulations.
5)Requires SCSA, in conjunction with the committee, to monitor
compliance of the PHP, including making periodic inspections
and onsite visits.
6)Permits a physician 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.
7)Requires a physician's voluntary participation in the PHP to
be confidential unless waived by the physician or otherwise
specified.
8)Prohibits any voluntary agreement from being considered a
disciplinary action or order by MBC, prohibits the agreement
from being disclosed to MBC, 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
self-enrolling or voluntarily participating in the PHP;
b) MBC has not referred a complaint against the physician
to a district office of MBC for investigation for conduct
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involving or alleging an impairment adversely affecting the
care and treatment of patients; and,
c) The physician is complying with the treatment program
and the conditions and procedures to monitor compliance.
9)Requires each participant, prior to entering into a voluntary
agreement, to disclose to the committee whether he or she is
under investigation by MBC. Specifies that if a participant
fails to disclose such an investigation, upon enrollment or at
any time while a participant, the participant must be
terminated from the PHP.
10)Permits a participant who discloses he or she is under
investigation by MBC to participate in, and enter into a
voluntary agreement with, the PHP.
11)Permits the PHP to:
a) Report to the committee the name and results of any
contact or information received regarding a physician 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; and,
b) Report to the committee if the physician fails to
cooperate with any of the requirements of the PHP; 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
PHP, is unable to practice medicine with reasonable skill
and safety, or who withdraws or is terminated from the PHP
prior to completion.
12)States that any oral or written information reported to MBC,
as specified, shall remain confidential unless MBC has
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referred a complaint against the physician for investigation
for conduct involving or alleging an impairment adversely
affecting the care and treatment of patients.
13)Requires the committee to report statistics received from the
PHP to the SCSA and the Legislature.
14)Requires a physician 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 the PHP.
15)Requires MBC to increase licensing fees no less than $22 but
no more than 2.5% of the license fee, to be expended solely
for the purposes of the PHP.
16)Requires the SCSA to contract for a biennial audit to assess
the effectiveness, efficiency, and overall performance of the
program and make recommendations.
17)Sunsets the provisions of this bill on January 1, 2021.
18)Makes various legislative findings and declarations relating
to the need for, and value of, a PHP in California.
19)Defines specified terms for purposes of this bill.
EXISTING LAW :
1)Provides for the licensure and regulation of physicians by MBC
pursuant to the Medical Practice Act.
2)Requires MBC to oversee a diversion program for physicians
with alcohol and other substance abuse problems until July 1,
2008, and specifies that after this date MBC is no longer
responsible for a diversion program.
3)Specifies other regulatory boards that have established
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criteria for the acceptance, denial, or termination of
licentiates in a diversion program.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, current law
does not provide a publicly accountable program for physicians
to be referred to treatment and to be safely and effectively
monitored for substance abuse or mental illnesses that may
impair their ability to practice medicine safely. The author
asserts that, without such a program, physicians are more
likely to hide these problems until they pose a risk of harm
to patients.
2)BACKGROUND . MBC's diversion program, established in 1980, was
designed to rehabilitate doctors with mental illness and
substance abuse problems without endangering public health and
safety. According to MBC, the diversion program was a
monitoring program that provided a pathway for physicians
impaired by alcohol and other substance abuse who were
violating the Medical Practice Act to divert away from
appropriate disciplinary action. The MBC program required
participants to sign contracts requiring them to adhere to
strict conditions, including an evaluation by an evaluation
committee, random biological fluid testing, in-patient
treatment, psychiatric care, group therapy sessions,
Alcoholics or Narcotics Anonymous meetings, and worksite
monitors. The program was responsible for monitoring impaired
physicians to ensure they were complying with their contract.
Physicians entered the program by self-referral, as an
alternative to discipline during an MBC investigation, or as
required by a probationary order. Participants in the program
were only known to the public if they were in the program as a
condition of probation. During their enrollment, the MBC
program monitored the participants' sobriety through
biological fluid testing. Physicians were required to remain
in the program for a minimum of five years and had to have at
least three years sobriety before they could be considered for
completion. Participants who were terminated for
noncompliance were referred to MBC's Enforcement Branch for
the filing of appropriate disciplinary charges seeking
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revocation of the license or probation.
MBC's diversion program was audited four times between 1982 and
2007 by the Bureau of State Audits and once in 2005 by a
legislatively mandated enforcement monitor; all reports
concluded that the program was fraught with problems and in
need of significant improvements. Some of the key
shortcomings that were identified included the following: a)
the diversion program did not receive required monitoring
reports from some participants' treatment providers and
work-site monitors; b) it reduced work restrictions and
requirements originally placed on some physicians without
evidence that participants attended meetings and individual
therapy sessions as required; c) it did not always require
physicians to immediately stop practicing medicine after
testing positive for alcohol or a nonprescribed or prohibited
drug; d) it failed to perform a significant percentage of
random drug testing of participants; e) it failed to quickly
identify missed drug tests or data inconsistencies between
collectors' reports or lab results; and, f) it lacked
consistent and effective oversight from MBC. In light of
these ongoing issues, MBC voted unanimously on July 26, 2007,
to terminate the diversion program. A transition plan for the
program was established and approved by MBC in November 2007.
The plan identified the different groups of program
participants and determined a course of action for each group
following the program's sunset on July 1, 2008.
3)PHPs . A diversion program generally refers to a program in
which doctors agree to a rehabilitative plan in lieu of
discipline for mental health or substance abuse issues. Many
states operate similar programs but they are referred to as
PHPs. PHPs are not rigidly defined and may include education
and outreach in addition to diversion and monitoring.
The American Medical Association began encouraging states to
develop PHPs 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 model
consists of a referral, an investigation to determine if
participation is warranted, followed by an intervention,
evaluation, and treatment based on a monitoring contract. The
typical duration of participation is five years.
According to a 2007 nationwide survey, in cooperation with the
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Federation of State Physician Health Programs, 54% of PHPs are
managed by independent, nonprofit foundations, and the
remainder are operated 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. A study
in the March 2009 issue of the Journal of Substance Abuse
Treatment that evaluated a sample of 904 physicians
participating in 16 state PHPs that required the physicians to
abstain from any use of alcohol or other drugs, as determined
by frequent random drug tests, found that 78% of participants
had no positive test for either alcohol or drugs over the
five-year period of monitoring. Additionally, the study noted
that, at post-treatment follow-up, 72% of the physicians were
continuing to practice medicine.
4)SUPPORT . The sponsors of this bill, the California Medical
Association, the California Academy of Family Physicians, and
the California Psychiatric Association, state that the need
for this bill arises from the decision of MBC to terminate its
diversion program on June 31, 2008. The sponsors note,
however, that this bill creates a program that is
significantly different than the former MBC program in that
the PHP created by this bill does not divert or defer
physicians from any enforcement by MBC. According to the
sponsors, the PHP in this bill 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 sponsors stress that this bill is not an
alternative to discipline and all current laws leading to
physician discipline are maintained.
5)PRIOR LEGISLATION . AB 214 (Fuentes) of 2008, which would have
created the Physician Diversion Program under the Department
of Public Health, was vetoed by Governor Schwarzenegger. In
his veto message, the Governor stated that it is inappropriate
to separate the program from MBC because it is critical that
the licensing agency be directly involved in monitoring
participation in the diversion program to protect patients and
enable timely enforcement actions.
6)SECOND COMMITTEE OF REFERENCE . This bill was previously heard
in the Assembly Business and Professions Committee on April
21, 2009, and was approved on an 11-0 vote.
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REGISTERED SUPPORT / OPPOSITION :
Support
California Academy of Family Physicians (sponsor)
California Medical Association (sponsor)
California Psychiatric Association (sponsor)
California Society of Addiction Medicine
Opposition
None on file.
Analysis Prepared by : Cassie Rafanan / HEALTH / (916)
319-2097