BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1172|
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UNFINISHED BUSINESS
Bill No: SB 1172
Author: Negrete McLeod (D)
Amended: 6/22/10
Vote: 21
SENATE BUS., PROF. & ECON. DEVEL. COMMITTEE : 7-1, 4/19/10
AYES: Negrete McLeod, Wyland, Aanestad, Calderon, Correa,
Oropeza, Yee
NOES: Walters
NO VOTE RECORDED: Florez
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 27-0, 5/28/10
AYES: Alquist, Ashburn, Calderon, Cedillo, Correa,
DeSaulnier, Ducheny, Dutton, Florez, Hancock,
Hollingsworth, Huff, Kehoe, Leno, Liu, Lowenthal, Negrete
McLeod, Padilla, Pavley, Price, Romero, Simitian,
Steinberg, Strickland, Wright, Wyland, Yee
NO VOTE RECORDED: Aanestad, Cogdill, Corbett, Cox, Denham,
Harman, Oropeza, Runner, Walters, Wiggins, Wolk, Vacancy,
Vacancy
ASSEMBLY FLOOR : 74-0, 8/16/10 - See last page for vote
SUBJECT : Regulatory boards: diversion programs
SOURCE : Author
DIGEST : This bill requires a healing arts board of the
CONTINUED
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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, 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, as specified.
Assembly Amendments specify that the bill does not affect
the Board of Registered Nursing, and delete provisions in
the bill which prohibited a board from disclosing to the
public that a licensee is participating in a diversion
program unless that participation was ordered as a term of
probation.
ANALYSIS :
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 specified boards to establish criteria for the
acceptance, denial or termination of licentiates in a
diversion program.
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
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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.
This bill:
1. Limits the retention requirement to three years for all
records and documents pertaining to the treatment and
rehabilitation of licentiates impaired by alcohol or
dangerous drugs by individuals or entities contracting
with DCA or any board within DCA for the provision of
such services.
2. Relaxes the confidentiality requirement on records and
documents pertaining to services for the treatment and
rehabilitation of licentiates impaired by alcohol or
dangerous drugs, stating that they must be kept
confidential and are not subject to discovery or
subpoena, unless otherwise expressly provided by statute
or regulation.
3. 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.
4. Permits a healing arts board, except BRN, to adopt
regulations authorizing the board to order a licensee on
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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.
5. Prohibits an order to cease practice pursuant to this
bill from being governed by the Administrative
Procedures Act, and states that the order shall not
constitute a disciplinary action.
Background
Healing Arts Boards Diversion Programs . The diversion
programs that currently exist were modeled after the
state's 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
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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 reassessments by telephone unless
otherwise requested by the Board. Also, the contractor
performs unobserved, as well as observed, drug screening.
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
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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 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
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from enforcement in lieu of discipline, and for physicians
who were directed into the program as part of a
disciplinary order.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/17/10)
Board of Behavioral Sciences
Medical Board of California
ARGUMENTS IN SUPPORT : The author's office is the sponsor
of this bill. The author's office 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's office points out that
the protection of the public remains the top priority of
boards when dealing with substance abusing licensees.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Block, Blumenfield, Bradford,
Brownley, Buchanan, Caballero, Carter, Chesbro, Conway,
Cook, Coto, De La Torre, De Leon, DeVore, Eng, Evans,
Feuer, Fletcher, Fong, Fuentes, Fuller, Furutani, Gaines,
Galgiani, Gatto, Gilmore, Hagman, Hall, Harkey, Hayashi,
Hernandez, Hill, Huber, Huffman, Jeffries, Jones, Knight,
Lieu, Logue, Bonnie Lowenthal, Ma, Mendoza, Miller,
Monning, Nava, Nestande, Niello, Nielsen, Norby, V.
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Manuel Perez, Portantino, Ruskin, Salas, Saldana, Silva,
Skinner, Smyth, Solorio, Audra Strickland, Swanson,
Torlakson, Torres, Torrico, Tran, Villines, Yamada, John
A. Perez
NO VOTE RECORDED: Bass, Blakeslee, Charles Calderon, Davis,
Garrick, Vacancy
JJA:do 8/17/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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