BILL ANALYSIS
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|Hearing Date:April 19, 2010 |Bill No:SB |
| |1172 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: SB 1172Author:Negrete McLeod
As Amended:April 12, 2010 Fiscal:Yes
SUBJECT: Regulatory boards.
SUMMARY: Requires a healing arts board of the Department of Consumer
Affairs to order a licensee 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; allows a healing arts board
to adopt regulation s authorizing the board to order a licensee on
probation or in a diversion program to cease practice for major
violations and when the board orders a licensee to undergo a clinical
diagnostic evaluation pursuant to uniform and specific standards, as
specified.
Existing law:
1) Establishes the Department of Consumer Affairs (DCA) which oversees
boards and bureaus which license and regulate businesses and
professions, including doctors, nurses, dentists, engineers,
architects, contractors, cosmetologists and automotive repair
facilities, to name a few.
2) Requires the 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 Dental Board of California for dentists .
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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 .
g) The Physician Assistant Committee for physician assistants .
3) Authorizes a healing arts board to deny, suspend, or revoke a
licensee for specified acts.
4) Establishes within the DCA the Substance Abuse Coordination
Committee (SACC) to develop uniform standards that will be used
by healing arts boards in dealing with licensees with substance
abuse problems. Specifies that the SACC shall be chaired by
the DCA director and that executive officers from specified
boards shall comprise the membership of the committee.
5) Requires the SACC to develop uniform standards in specified
areas for healing arts boards, whether or not they use a
diversion program, by January 1, 2010.
6) Requires that individuals or entities contracting with the DCA
or any board within the DCA for the provision of 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.
7) 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.
8) Requires the DCA to conduct a thorough audit of the
effectiveness, efficiency, and overall performance of the
vendor chosen by DCA to manage diversion programs for
substance-abusing licensees of health care licensing boards, as
specified, by June 30, 2010.
9) Establishes the Office of Administrative Hearings to adjudicate
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hearings and proceedings against licensees of boards within the
DCA pursuant to the Administrative Procedure Act.
This bill:
1) Requires that DCA's audit of services relating to the treatment and
rehabilitation of licentiates impaired by alcohol or dangerous
drugs to be an external audit conducted at least once every three
years by a qualified, independent reviewer or review team from
outside the DCA with no real or apparent conflict of interest with
the contractor providing the services. Requires the independent
reviewer or review team to be competent in the professional
practice of internal auditing and assessment processes.
2) Requires the independent reviewer or review team to prepare an
audit report that assesses the contractor's performance in adhering
to any standards established by the DCA or the board and to submit
that report to the Legislature, the DCA, and the board by June 30
every three years, with the first report due in 2013. Requires the
audit report to make findings and identify any material
inadequacies, deficiencies, irregularities, or any other
noncompliance with the terms of the contract.
3) Requires the DCA, the contract vendor, and the board to respond to
the assessment and findings in the audit report prior to submission
to the Legislature.
4) Requires a healing arts board of the DCA, whether or not it
operates a diversion program, to order a licensee 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.
5) Allows a healing arts board to adopt regulations authorizing the
board to order a licensee on probation or in a diversion program to
cease practice for major violations and when the board orders a
licensee to undergo a clinical diagnostic evaluation pursuant to
uniform and specific standards, as specified.
6) States the following about the cease practice order specified in
#4) and #5) above:
a) Shall not be governed by the Administrative Procedures Act.
b) Shall not constitute disciplinary action.
7) Allows a licensee to petition to return to practice pursuant to the
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uniform and specific standards, as specified.
8) Prohibits a board from disclosing to the public unless otherwise
authorized by statute or regulation that a licensee is
participating in a board diversion program unless participation was
ordered as a term of probation. Requires a board to disclose to
the public any restrictions that are placed on a licensee's
practice as a result of the licensee's participation in a board
diversion program provided that the disclosure does not contain
information linking the restriction to the licensee's participation
in the board's diversion program.
9) Prohibits a licensee from waiving confidentiality of the documents
pertaining to services for his or her own the treatment and
rehabilitation in a drug diversion program, as specified.
FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
1.Purpose. The Author is the Sponsor of this measure. The Author
points out that pursuant to SB 1441 (Ridley-Thomas, Chapter 548,
Statutes of 2008), the DCA was required to adopt uniform guidelines
on sixteen specific standards that would apply to substance abusing
health care licensees, regardless of whether a board has a diversion
program. Although most of the adopted guidelines do not need
additional statutes for implementation, there are a couple of
changes that must be statutorily adopted to fully implement these
standards. This bill seeks to provide the statutory authority to
allow boards to order a licensee 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, if a major
violation is committed and while undergoing clinical diagnostic
evaluation. The ability of a board to order a licensee to cease
practice under these circumstances provides a delicate balance to
the inherent confidentiality of diversion programs. The Author
points out that the protection of the public remains the top
priority of boards when dealing with substance abusing licensees.
2.Background.
a) Healing Arts Boards Diversion Programs. The diversion
programs that currently exist were modeled after the state's
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first diversion program for physicians and surgeons created at
the Medical Board of California (MBC) in 1981, 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. This program was voluntary and applied only to those
who have voluntarily requested diversion treatment and
supervision. On June 30, 2008, the MBC's program sunsetted,
after a series of audits by the Bureau of State Audits (BSA) and
a report by an Enforcement Monitor which found inconsistent
monitoring of physicians, and poor oversight by the MBC.
While the MBC housed its diversion program, other healing arts
boards outsource these functions. DCA currently manages a master
contract with Maximus , a publicly traded corporation for six
boards' and one committee's diversion program; the Board of
Registered Nursing, the Dental Board of California, the Board of
Pharmacy, the Physical Therapy Board of California, the
Veterinary Medical Board, the Osteopathic Medical Board of
California, and the Physician Assistant Committee. The
individual boards oversee the programs but services are provided
by Maximus. The board's diversion programs follow the same
general principles as that of the MBC's program. Health
practitioners with mental illnesses or 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 MBC kept in-house: medical advisors, compliance
monitors, case managers, urine testing system, reporting, and
record maintenance. 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 MBC 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
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reassessments by telephone unless otherwise requested by the
Board. Also, the contractor performs unobserved, as well as
observed, drug screening.
b) Failures of the Physician Diversion Program (PDP). The BSA
has audited the MBC diversion program four times between 1982 and
2007. In 2005, a legislatively created enforcement monitor also
audited the MBC diversion. The enforcement monitor's audit
indicated that "the Board's diversion program 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
alcohol." The 2007 BSA audit concluded, "Although the MBC
diversion program 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 points 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
MBC diversion program does not adequately ensure that it receives
required monitoring reports from its participants' treatment
providers and work-site monitors. In addition, although the MBC
diversion program has reduced the amount of time it takes to
admit new participants into the program and begin drug testing,
it does not always respond to potential relapses in a timely and
adequate manner. Specifically, the MBC diversion program has not
always required 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% were not performed as randomly scheduled.
Additionally, the MBC diversion program currently does 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. Finally, the BSA indicates that MBC
has not provided consistently effective oversight.
In recognition that patient safety cannot continue to be
compromised, MBC voted unanimously on July 26, 2007 to end its
diversion program, declaring in its motion that "in light of
MBC'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, MBC hereby
determines it is inconsistent with MBC's public protection
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mission and policies to operate a diversion program." This
declaration prompted MBC to approve a Diversion Transition Plan
(DTP) on November 2, 2007 to accommodate the 203 physicians
already in the program. The DTP split the participants in two
categories; those with at least three years of sobriety and those
without. For those with at least three years of sobriety,
participants will be evaluated by a Diversion Evaluation
Committee (DEC), and if the DEC recommends and the DTP's
administrator approves, the individual will be deemed to have
successfully completed the program and discharged. For those
with less than three years of sobriety, participants would
receive a letter to "highly encourage" them to seek entrance into
another monitoring or treatment program to assist them in
maintaining sobriety. MBC has also articulated a policy in the
DTP to deal with physicians who were referred into the diversion
program from enforcement in lieu of discipline, and for
physicians who were directed into the program as part of a
disciplinary order.
c) Informational Hearings. The Senate Business, Professions, and
Economic Development Committee held informational hearings on the
physician diversion program on June 11, 2007, and on March 10,
2008 another hearing examined how the MBC and the other health
care licensing boards deal with licentiates with substance abuse
and drug addiction problems. These hearings revealed the need to
establish uniform guidelines for substance abusing healing arts
licensees.
d) Failures of the Board of Registered Nursing's Diversion
Program. On July 25, 2009, the LA Times published an article on
the failures of BRN's drug diversion program. This article
pointed out that participants in the program continue to practice
while intoxicated, stole drugs from the bedridden and falsified
records to cover their tracks. Moreover, more than half of those
participating in drug diversion did not complete the program, and
even those who were labeled as " public risk " or are considered
dangerous to continue to treat patients did not trigger immediate
action or public disclosure by BRN. The article further pointed
out that because the program is confidential, it is impossible to
know how many enrollees relapse or harm patients. These
revelations, including other articles revealing lengthy
enforcement timeframes against problem nurses who continue to
practice and provide care to the detriment of patients, led
Governor Schwarzenegger to replace four members of the BRN and
appoint members to two long-time vacancies.
On July 27, 2009, DCA convened a meeting for the purpose of taking
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testimony and evidence relevant to BRN enforcement program.
BRN's discussion focused on its proposals that were contained in
the "Enforcement Report On the Board of Registered Nursing." The
report pointed out several barriers to BRN's enforcement process,
but specifically indicated that for the board's diversion
program, when a substance abuse case is referred to the diversion
program, the investigation is placed on hold while the licensee
decides if he/she wants to enter diversion. This practice allows
the licensee to delay final disposition of the case. In
addition, there is limited communication between the diversion
program and the enforcement program which can delay investigation
of licensees who are unsuccessfully diverted and are terminated
from the program, and that the BRN lacks a number of enforcement
tools, including the ability to automatically suspend licensees
pending a hearing.
On August 17, 2009, this Committee held an informational hearing
entitled "Creating a Seamless Enforcement Program for Consumer
Boards" and the background paper for this hearing included a
recommendation by the Center for Public Interest Law and the BRN
to provide for the automatic suspension of a nurse's license to
ensure that those who do not and cannot comply with the terms and
conditions of a diversion program are promptly removed from
practice. This bill codifies this recommendation by ordering 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, and allows a
healing arts board to adopt regulations authorizing the board to
order a licensee on probation or in a diversion program to cease
practice for major violations and when the board orders a
licensee to undergo a clinical diagnostic evaluation pursuant to
uniform and specific standards authorized to be adopted under SB
1441.
e) Substance Abuse Coordination Committee. SB 1441
(Ridley-Thomas, Chapter 548, Statutes of 2008) established within
the DCA the SACC to formulate by January 1, 2010 , uniform
standards that will be used by healing arts boards in dealing
with substance-abusing licensees, whether or not a health care
board operates a diversion program. These sixteen standards , at
a minimum, include: requirements for clinical diagnostic
evaluation of licensees; requirements for the temporary removal
of the licensee from practice for clinical diagnostic evaluation
and any treatment, and criteria before being permitted to return
to practice on a full-time or part-time basis; all aspects of
drug testing; whether inpatient, outpatient, or other type of
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treatment is necessary; worksite monitoring requirements and
standards; consequences for major and minor violations; and
criteria for a licensee to return to practice and petition for
reinstatement of a full and unrestricted license.
On March 3, 2009, the SACC conducted it first public hearing and
the discussion included an overview of diversion programs, the
importance of addressing substance abuse issues for health care
professionals and the impact of allowing health care
professionals who are impaired to continue to practice. During
this meeting, the SACC members agreed to draft uniform guidelines
for each of the standards. During subsequent meetings,
roundtable discussions were held on the draft uniform standards,
including public comments. In December 2009, the DCA adopted the
uniform guidelines for each of the standards required by SB 1441.
f) Uniform Standards Regarding Substance Abusing Licensees. Some
of the standards adopted by the SACC, include the following:
i) A clinical diagnostic evaluation shall be conducted by a
licensed practitioner and in accordance with acceptable
professional standards for conducting substance abuse clinical
diagnostic evaluations, and requires the clinical evaluation
report to set forth, in the evaluator's opinion, whether the
licensee has a substance abuse problem.
ii) The board shall order the licensee to cease practice
during the clinical diagnostic evaluation pending the results
of the clinical diagnostic evaluation.
iii) Worksite monitors must meet specific requirements to be
considered by the boards.
iv) Licensees shall be randomly drug tested at least 104 times
per year for the first year and at any time as directed by the
board. After the first year, licensees, who are practicing,
shall be randomly drug tested at least 50 times per year, and
at any time as directed by the board.
v) When a licensee tests positive for a banned substance, the
board shall order the licensee to cease practice and the board
shall contact the licensee and instruct the licensee to leave
work. In determining whether the positive test is evidence of
prohibited use, the board should, as applicable, consult the
specimen collector and the laboratory, communicate with the
licensee and/or any physician who is treating the licensee and
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communicate with any treatment provider, including group
facilitator(s).
vi) When a board confirms that a positive drug test is
evidence of use of a prohibited substance, the licensee has
committed a major violation, and the board shall impose the
specified consequences.
vii) Major Violations include, but are not limited to:
(1) Failure to complete a board-ordered program.
(2) Failure to undergo a required clinical diagnostic
evaluation.
(3) Multiple minor violations.
(4) Treating patients while under the influence of
drugs/alcohol.
(5) Any drug/alcohol related act which would constitute
a violation of the practice act or state/federal laws.
(6) Failure to obtain biological testing for substance
abuse.
(7) Testing positive and confirmation for substance
abuse pursuant to Uniform Standard #9.
(8) Knowingly using, making, altering or possessing any
object or product in such a way as to defraud a drug test
designed to detect the presence of alcohol or a controlled
substance.
g) Consequences for a major violation include, but are not
limited to the licensee being ordered to cease practice, undergo
a new clinical diagnostic evaluation, and must test negative for
at least a month of continuous drug testing before being allowed
to go back to work; termination of a contract/agreement; and
referral for disciplinary action, such as suspension, revocation,
or other action as determined by the board.
h) Requires a private-sector vendor that provides diversion
services to report to the board any major violation within one
business day.
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i) The board shall disclose practice restrictions on licensees
who are participating in a board monitoring program or diversion
program but shall not contain information disclosing a licensee's
participation in a diversion program.
3.Why Statutory Authority is Necessary. The provisions of this
bill requiring the board to order a licensee to cease practice
for testing positive for any substance and for healing arts
boards to adopt regulations to order a licensee to cease
practice for a major violation, and when the board orders a
licensee to undergo a clinical diagnostic evaluation, are
necessary because current law does not give boards the authority
to order a cease practice. Moreover, boards are not authorized
to disclose any restrictions that are placed on a licensee's
practice as a result of the licensee's participation in a board
diversion program. This measure, by granting this authority,
will provide for the full implementation of the Uniform
Standards.
4.Policy Issue : Number of times drug testing should be required?
Consideration may have to be given to the number of drug testing
required of licensees who are not employed. The DCA had formed
a subcommittee of the SACC in its April 6, 2010 meeting to
further evaluate the drug testing requirements.
5.Related Legislation This Session. SB 1111 (Negrete McLeod),
pending in this Committee, enacts the Consumer Health Protection
Enforcement Act which contains various provisions relating to
the investigation and enforcement of disciplinary actions
against licensees of healing arts boards, as specified.
6.Prior Related Legislation.
a) AB 526 (Fuentes, 2009) would have established the Public
Protection and Physician Health Program Act of 2009 to create
within the State and Consumer Services Agency the Public
Protection and Physician Health Committee, which would, until
January 1, 2021, assist physicians and surgeons who may be
impaired by alcohol or substance abuse or dependence or by a
mental disorder. AB 526 was held in the Senate
Appropriations suspense file.
b) AB 214 (Fuentes, 2008) would have created the Public
Protection and Physician Health Program Act of 2008 under the
State Department of Public Health is almost identical to this
measure. The Governor vetoed this bill and in his veto
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message 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.
c) SB 1441 (Ridley-Thomas, Chapter 548, Statutes of 2008)
establishes in the DCA the Substance Abuse Coordination
Committee (SACC), comprised of the executive officers of
DCA's healing arts licensing boards, as specified, to
formulate no later than January 1, 2010, uniform and specific
standards relating to substance-abusing licensees.
d) AB 2443 (Nakanishi, 2008) required MBC to establish a
program to promote the issues concerning physician and
surgeon well-being and would have required the program to
include, among other things, an examination and evaluation of
existing wellness education for medical students,
postgraduate trainees, and licensed physicians and surgeons
and an outreach effort to promote physician and surgeon
wellness. The bill would have required the program to be
developed within existing resources of MBC. AB 2443 was
vetoed by the Governor and in his veto message stated that
while this bill is well-intentioned, it detracts from the
mission and purposed of MBC. MBC 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.
e) SB 761 (Ridley-Thomas, 2007), which died in the Assembly
Appropriations Committee, would have extended the sunset date
of the Physician Diversion Program to July 1, 2010.
f) SB 231 (Figueroa, Chapter 674, Statutes of 2005), had
various provisions relating to MBC and specifically
established a January 1, 2009 sunset date for the Diversion
Program.
SUPPORT AND OPPOSITION:
Support: None on file as of April 14, 2010
Opposition: None on file as of April 14, 2010
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Consultant:Rosielyn Pulmano