BILL ANALYSIS �
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|Hearing Date:April 23, 2012 |Bill No:SB |
| |1483 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 1483Author:Steinberg
As Amended:April 17, 2012 Fiscal: Yes
SUBJECT: Physicians and Surgeons.
SUMMARY: Establishes the Physician Health Program (PHP), administered
by the Physician Health, Awareness and Monitoring Quality Oversight
Committee (Committee), with 14 members to be appointed as specified.
The purpose of the program would be to promote awareness and education
relative to physician and surgeon health issues, including impairment
due to alcohol or substance abuse, mental disorders, or other health
conditions that could affect the safe practice of medicine. Provides
for referral by the PHP of physicians and surgeons, as defined, to
certified monitoring programs on a voluntary basis, governed by a
written agreement between the participant and the PHP. Requires the
Department of Consumer Affairs (DCA) to select a contractor to
implement the program with the Committee serving as the evaluation
body for submitted proposals. Requires the Committee to report to the
DCA on the outcome of the PHP and would require regular audits of the
program.
Existing law:
1)Provides for the licensure and regulation of physicians and
surgeons by the Medical Board of California (Board) under the
DCA pursuant to the Medical Practice Act.
2)Required the Board to oversee a diversion program for physicians
and surgeons with alcohol and substance abuse problems until
June 30, 2008. (The Board is no longer responsible for a
diversion program.)
3)As part of the prior diversion program, the Board established
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diversion evaluation committees (DECs) to identify and
rehabilitate physicians and surgeons with drug, alcohol abuse
problems, or mental or physical illness that affected their
competency to practice medicine, and provided for procedures and
criteria to be followed by the DECs for acceptance, denial or
termination of physicians and surgeons in the diversion program.
4)Specifies that it is the intent of the Legislature that the DCA
conduct a thorough audit of the effectiveness, efficiency, and
overall performance of the vendor chosen by the DCA to manage
diversion programs for substance-abusing licensees of heath care
licensing boards and make recommendations regarding the
continuation of the programs to ensure that individuals
participating in the programs are appropriately monitored, and
the public is protected from health care practitioners who are
impaired due to alcohol or drug abuse or mental or physical
illness.
5)Specifies that the audit shall identify whether licensees are
self-referred, board-referred or board-ordered, describe in
detail the type of diversion services provided, review several
critical areas and programs provided by the vendor, and also
recommend ways in which the DCA can more closely monitor the
vendor.
6)Establishes in the DCA the Substance Abuse Coordination
Committee (SACC), comprised of executive officers of the DCA's
healing arts boards as specified below and a designee of the
State Department of Alcohol and Drug Programs. (Business and
Professions Code (BPC) � 315 (a))
7)Requires the SACC 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,
whether or not a board chooses to have a formal diversion
program. (BPC � 315 (c))
8)Requires the following Boards to establish criteria for the
acceptance, denial or termination of licentiates in a diversion
program: The Osteopathic Medical Board of California for
osteopathic physicians and surgeons; the Board of Registered
Nursing for registered nurses; the Board of Dental Examiners of
California for dentists; the Board of Pharmacy to operate a
recovery program for pharmacists or intern pharmacists; the
Physical Therapy Board of California for physical therapists;
the Veterinary Medical Board for veterinarians and registered
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veterinary technicians; and, the Physician Assistant Committee
for physician assistants.
9)Establishes the Attorney Diversion and Assistance Act within the
State Bar of California to address the substance abuse and
mental health problems of attorneys who voluntarily participate
in the program.
10)Provides for the professional review of specified healing arts
licentiates by a peer review body, as defined, including a
medical or professional staff of any licensed health care
facility or clinic, health care service plan, specified health
professional societies, or a committee organized by any entity
that functions as a body to review the quality of professional
care provided by specified health care practitioners. (BPC �
805)
11)Requires a report to be filed by a peer review body to an
agency having regulatory jurisdiction over healing arts
licentiates if a licentiate's application for staff privileges
is denied or rejected, has had his or her membership, staff
privileges, or employment terminated or revoked for medical
disciplinary reasons; or if restrictions are imposed, or
voluntarily accepted, on staff privileges, membership or
employment for a cumulative total of 30 days or more for any
12-month period, for a medical disciplinary cause or reason
(Commonly referred to as an "805 report" pursuant to � 805 of
the BPC.)
12)Requires a peer review body to file a report with the relevant
agency within 15 days after a peer review body makes a final
decision or recommendation regarding the disciplinary action to
be taken against a licentiate if it is determined, based on the
investigation of the licentiate, that the licentiate was
involved in the use of, or prescribing for or administering to
himself or herself, any controlled substance; or the use of any
dangerous drug or alcoholic beverages, to the extent, or in such
a manner as to be dangerous or injurious to the licentiate, any
other person, or to the public, or to the extent that such use
impairs the ability of the licentiate to practice safely.
(BPC � 805.01)
This bill:
1)Makes the following findings and declarations:
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a) It is in every patient's interest to have physicians and
surgeons that are healthy and well.
b) Physicians and surgeons may have health conditions that
interfere with their ability to practice medicine safely.
c) In such cases, the most effective long-term protection for
patients is early intervention to address health issues that have
the potential to interfere with the safe practice of physicians
and surgeons.
2)Provides that while the Legislature recognizes that physicians and
surgeons have a number of options for obtaining treatment, it is the
intent of the Legislature in enacting this act to promote awareness
among members of the medical community about health issues that
could interfere with safe practice, to promote awareness that
private early intervention options are available, to provide
resources and referrals to ensure physicians and surgeons are better
able to choose high quality private interventions that meet their
specific needs, and to provide a separate mechanism for monitoring
treatment.
3) Creates the Physician Health, Awareness, and Monitoring Quality Act
of 2012 (Act).
4)Defines "Committee" as the Physician Health, Awareness, and
Monitoring Quality Oversight Committee, as specified.
5)Defines "Impairment" as the inability to practice medicine with
reasonable skill and safety to patients by reason of alcohol or
substance abuse, a mental disorder, or another health condition as
determined by a clinical evaluation in individual circumstances.
6)Defines the "Physician Health Program" (PHP) as the program
specified under the Act and includes vendors, providers, or entities
that contract with the Committee pursuant to this Act. The PHP
itself shall not offer or provide treatment services to physicians
and surgeons.
7)Defines "Qualifying illness" as alcohol or substance abuse, a mental
disorder, or another health condition that a clinical evaluation
determines can be monitored and treated with private clinical and
monitoring programs.
8)Requires the PHP to do all of the following:
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a) Be available to all physicians and surgeons, as defined.
b) Promote awareness among members of the medical community on
the recognition of health issues that could interfere with safe
practice.
c) Educate the medical community on the benefits of and options
available for early intervention to address those health issues.
d) Refer physicians and surgeons to monitoring programs certified
by the program by executing a written agreement with the
participant and monitoring the compliance of the participant with
that agreement.
e) Provide for the confidential participation by physicians and
surgeons who have a qualifying illness and who are not on
probation with the Board.
9)Establishes the Committee and specifies that it shall have the
duties and responsibilities as set forth in the Act and to take any
reasonable administrative actions necessary including, but not
limited to, hiring of staff and entering into contracts.
10)Provides that the Committee shall be formed no later than
(unspecified date).
11)Provides for a 14 member Committee and that the following 12
members shall be appointed by the Governor and licensed in this
state as physicians and surgeons with education, training, and
experience in the identification and treatment of substance use or
mental disorders, or both:
a) Two members recommended by a statewide association
representing psychiatrists with at least 3,000 members.
b) Two members recommended by a statewide association
representing addiction medicine specialists with at least 300
members.
c) Three members recommended by a statewide association
representing physician and surgeons from all specialties, modes
of practice, and practice settings with at least 25,000 members.
d) One member recommended by a statewide hospital association
representing at least 400 hospitals.
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e) Four members of the public, as specified.
12)Provides that the remaining 2 public members, as specified, shall
be chosen by the Legislature; one member appointed by the Speaker of
the Assembly and one member appointed by Senate Committee on Rules.
13)Provides that the Committee shall be subject to the Bagley-Keene
Open Meetings Act and the California Public Records Act.
14)Requires the Committee to also do all of the following:
a) Monitor compliance of the PHP with the requirements of the Act
and its implementing rules and regulations, if any.
b) Report to the DCA statistics received from the PHP and the
outcomes of the PHP, including, but not limited to, information
as specified, and that the DCA shall report to the Legislature
the same information. However, provides that in making these
reports, the Committee and the DCA shall not disclose any
personally identifiable information relating to any physician and
surgeon participating in the PHP pursuant to any agreement, as
specified, entered into with the PHP.
c) Requires the Committee to biennially contract to perform an
audit of the PHP and its vendors, as specified. Provides that
the audit shall be done by an �unspecified date] and shall
ascertain, if the PHP is operating in conformance with the rules
and regulations established by the Committee.
15)Requires that the rules adopted by the Committee shall be
consistent with Section 315 �of the BPC], the guidelines of the
Federation of State Physician Health Programs, Inc., as well as
community standards of practice, including, but not limited to,
criteria for acceptance of participants into the PHP and the refusal
to accept a person as a participant into the PHP and the assigning
of costs of participation and associated financial responsibilities
of participants. In the event of any conflicts between standards
established pursuant to Section 315 and the guidelines of the
Federation of State Physician Health Programs, Inc., and community
standards of practice, Section 315 shall prevail.
16)Provides that the DCA shall select a contractor for the PHP
pursuant to a request for proposals, and the Committee shall
contract for a five-year term with that entity. The process for
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procuring the services for the PHP shall be administered by the DCA
pursuant the Public Contract Code. However, the Committee shall
serve as the evaluation body for the procurement.
17)Requires the chief executive officer of the PHP vendor to have
expertise in the areas of substance or alcohol abuse, and mental
disorders in health care professionals.
18)Requires the PHP �vendor] to perform all of the following pursuant
to the contract entered into with the Committee:
a) Have a medical director to oversee clinical aspects of the
PHP's operations. The medical director shall have expertise in
the diagnosis and treatment of alcohol and substance abuse and
mental disorders in health care professionals.
b) Have established relationships with local medical societies
and hospital well-being committees for conducting education,
outreach, and referrals for physician and surgeon health.
c) Monitor the monitoring entities that participating physicians
and surgeons have retained for monitoring the participant's
treatment and shall provide ongoing services to physicians and
surgeons that resume practice.
d) Have a system for promptly reporting physicians and surgeons
unable to practice safely to the Medical Board of California
(Board) when, contrary to agreements with the PHP, they continue
to practice unsafely. This system shall ensure absolute
confidentiality in the communication to the enforcement division
of the Board, and shall not provide this information to any other
individual or entity unless authorized by the enrolled physician
and surgeon.
e) Report annually to the Committee statistics related to the
PHP, including, but not limited to, the number of participants
currently in the PHP, the number of participants referred by the
Board as a condition of probation, the number of participants who
have successfully completed their agreement period, the number of
participants terminated from the PHP, and the number of
participants reported by the PHP for noncompliance and failure to
meet the requirements of the PHP. However, in making that
report, the program shall not disclose any personally
identifiable information relating to any participant.
f) Submit to periodic audits and inspections of all operations,
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records, and management related to the PHP to ensure compliance
with the requirements of this Act and its implementing rules and
regulations, if any. Copies of the audits shall be published and
provided to the appropriate policy committees of the Legislature
within 10 business days of publication and a copy shall also be
made available to the public by Internet Website.
19)Requires a physician and surgeon as a condition of participation in
the PHP to enter into an individual agreement with the PHP and that
the agreement shall include the following:
a) A jointly agreed-upon plan and mandatory conditions and
procedures to monitor compliance with the program, including, but
not limited to, an agreement to cease practice.
b) Compliance with terms and conditions of treatment and
monitoring.
c) Limitations on practice.
d) Conditions and terms for return to practice.
e) Criteria for program completion.
f) Criteria for termination of the participant from the program.
20)Provides that if the physician and surgeon retains the services of
a private monitoring entity, he or she shall agree to authorize the
PHP vendor to receive reports from the private monitoring entity and
to request information from the private monitoring entity regarding
his or her treatment status. Except as otherwise specified, a
physician and surgeon's participation in the PHP pursuant to an
agreement shall be confidential unless waived by the physician and
surgeon.
21)Specifies that any agreement entered into under these provisions
shall not be considered a disciplinary action or order by the Board,
and shall not be disclosed to the Committee or the Board if both of
the following apply:
a) The physician and surgeon did not enroll in the program as a
condition of probation or as a result of an action of the Board.
b) The physician and surgeon is in compliance with the conditions
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and procedures in the agreement.
22)Requires the PHP to immediately report the name of a participant to
the Committee when it learns of the participant's failure to meet
the requirements of the PHP including failure to cease practice when
required or failure to submit to evaluation, treatment, or
biological testing when required. The PHP shall also immediately
report the name of a participant to the Committee when it learns
that the participant's impairment is not substantially alleviated
through treatment, or if the participant withdraws or is terminated
from the PHP prior to completion, or if, in the opinion of the PHP
after a risk assessment is conducted, the participant is unable to
practice medicine with reasonable skill and safety.
23)Requires that within two business days of receiving a report as
specifies in Item # 21 above, the Committee shall refer the matter
to the Board.
24)Provides that except as specified, any oral or written information
reported to the Board, including, but not limited to, any physician
and surgeon's participation in the PHP and any agreement entered
pursuant to the provisions of this Act, shall remain confidential as
specified, and shall not constitute a waiver of any existing
evidentiary privileges under any other provision or rule of law.
However, confidentiality regarding the physician and surgeon's
participation in the PHP and of all information and records created
by the PHP related to that participation shall not apply if the
Board has referred a participant as a condition of probation.
25)Provides that nothing in the Act prohibits, requires, or otherwise
affects the discovery or admissibility of evidence in an action by
the Board against a physician and surgeon based on acts or omissions
within the course and scope of his or her practice.
26)Specifies that any information received, developed, or maintained
by the Committee regarding a physician and surgeon in the PHP shall
not be used for any other purposes.
FISCAL EFFECT: Unknown. This measure has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
1.Purpose. There are several Co-Sponsors (Sponsors) for this measure
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which include the California Medical Association, California
Psychiatric Association, California Hospital Association and the
California Society of Addiction Medicine. According to the
Sponsors, this measure enacts the Physician Health, Awareness, and
Monitoring Quality Act of 2012, which would facilitate a
public-private program, independent of the California Medical Board,
to:
Promote awareness among the medical community about health issues that
could interfere with safe practice; including alcohol or substance
abuse, mental illness, or other health conditions that may be
addressed through private treatment and monitoring programs.
Coordinate and oversee private treatment and monitoring programs,
educate the medical community about such private early intervention
options and provide resources and referrals to ensure physicians and
surgeons are better able to choose high quality private
interventions that meet their specific needs.
Protect patients by, as a condition of receiving confidential access
to such resources and referrals, requiring that participating
physicians and surgeons agree to specific terms and conditions, the
violation of which would result in immediate reporting to the
California Medical Board for purposes of potential enforcement
action.
The Sponsors indicate that since the end of the Medical Board's
diversion program, physicians dealing with alcohol or substance
abuse issues, mental illness, or other health conditions that may
interfere with their ability to practice medicine safely, can seek
private treatment and monitoring services. However, California is
one of only 5 states in the U.S. that does not have a physician
health program to coordinate and provide care and referral services
for physicians suffering from these maladies.
This is a serious public health risk for the state, as these troubled
practitioners present a very real and immediate threat to patients.
Without a statewide system for increasing awareness among the
medical community about health issues that could interfere with safe
practice, coordination and oversight of private treatment and
monitoring programs, education about such private early intervention
options, and provision of resources and referrals to ensure
physicians and surgeons are better able to choose high quality
private interventions that meet their specific needs, California's
already overburdened and aging physician workforce often has no
other option than keeping their struggle to themselves and trying to
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work through it. This is both unsafe and unacceptable.
2.Background.
a) Physician Diversion Program (PDP) of the Medical Board. The
Board's PDP was created in 1980 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.
The PDP was a voluntary program and only those physicians and
surgeons who voluntarily requested diversion treatment and
supervision could participate in the program. A physician could
enter the diversion program in any of the following ways: a)
self-referral; b) referral by the Enforcement Unit of the Board
in lieu of discipline; or c) directed as part of a disciplinary
order. Confidentiality was required for physicians and doctors
that self-refer and could be granted to those who were referred
by the Board (doctors could avoid public discipline if there was
no evidence of patient harm and they successfully completed the
program). For those who were directed to the program as part of
a disciplinary order, disciplinary actions are public records and
the practice violation that triggered the Board's involvement
would be reflected in the doctor's public file. Any physician
and surgeon terminated from the PDP for failure to comply with
program requirements was subject to a disciplinary action for
acts committed before, after or during participation in the PDP,
and a physician that successfully completed the PDP was not
subject to any disciplinary action for any alleged violation that
resulted in referral to the PDP. The PDP monitored participants'
attendance at group meetings, facilitated random drug testing,
and required reports from work-site monitors and treatment
providers. The PDP was allowed to on
June 30, 2008 .
b) Audits of the Physician Diversion Program (PDP). The BSA
audited the PDP four times between 1982 and 2007. In 2005, a
legislatively created enforcement monitor also audited the PDP.
The enforcement monitor's audit indicated that "the Board's PDP
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
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PDP 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 PDP does not
adequately ensure that it receives required monitoring reports
from its participants' treatment providers and work-site
monitors. In addition, although the PDP 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 PDP
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 PDP 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, the Board voted unanimously on July 26, 2007 to end
the PDP, declaring in its motion that "in light of Board'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, The Board hereby
determines it is inconsistent with Board's public protection
mission and policies to operate a diversion program." This
declaration prompted the Board to approve a Diversion Transition
Plan (DTP) on November 2, 2007 to accommodate the 203 physicians
already in the program.
c) Other Health Provider Diversion Programs. While the Board
houses its diversion program, other boards outsource these
functions. The DCA currently manages a master contract with
MAXIMUS, Inc. (MAXIMUS), 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
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individual Boards oversee the programs, but services are provided
by MAXIMUS. The Boards' diversion programs follow the same
general principles of the Medical Board's PDP. 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 the Medical Board kept in-house: Medical advisors,
compliance monitors, case managers, urine testing system,
reporting, and record maintenance. The 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 the
Medical Board 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 Nursing Board. Also, the
contractor performs unobserved, as well as observed, drug
screening.
d) Uniform Substance Abuse Standards. SB 1441 (Chapter 548,
Statutes of 2008) required the DCA to develop uniform and
specific standards that shall be used by each healing arts board
in dealing with substance-abusing licensees in 16 specified
areas, including requirements and standards for: (1) clinical
and diagnostic evaluation of the licensee; (2) temporary removal
of the licensee from practice; (3) communication with licensee's
employer about licensee status and condition; (4) testing and
frequency of testing while participating in a diversion program
or while on probation; (5) group meeting attendance and
qualifications for facilitators; (6) determining what type of
treatment is necessary; (7) worksite monitoring; (8) procedures
to be followed if a licensee tests positive for a banned
substance; (9) procedures to be followed when a licensee is
confirmed to have ingested a banned substance; (10) consequences
for major violations and minor violations of the standards and
requirements; (11) return to practice on a full-time basis; (12)
reinstatement of a health practitioner's license; (13) use and
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reliance on a private-sector vendor that provides diversion
services; (14) the extent to which participation in a diversion
program shall be kept confidential; (15) audits of a
private-sector vendor's performance and adherence to the uniform
standards and requirements; and (16) measurable criteria and
standards to determine how effective diversion programs are in
protecting patients and in assisting licensees in recovering from
substance abuse in the long term.
As part of the SB 1441 implementation, the DCA convened the
Substance Abuse Coordination Committee (SACC), which consisted of
representatives from all of the healing arts boards. A series of
meetings, subject to the Bagley-Keene Open Meeting Act, were held
from 2009 to 2011 to discuss and develop the standards. The
"Uniform Substance Abuse Standards" ("Uniform Standards") were
finally adopted in early 2010, with the exception of the
frequency of drug testing. The Department reconvened the SACC in
March 2011, where a final vote was taken on an amended schedule
for drug testing frequency.
The only standard that needed statutory authority dealt with the
cease practice requirement. SB 1172 (Negrete McLeod, Chapter
517, Statutes of 2010) was enacted, and among other provisions
required healing arts boards to order a licensee to cease
practice if the licensee tests positive for any prohibited
substance under the terms of the licensee's probation or
diversion program.
Boards began the process of adopting the "Uniform Standards" via
regulation and are continuing to move forward with submitting
their regulations to the DCA and the Office of Administrative.
There have been some issues with some boards regarding their
discretionary authority to revise the 16 standards, in particular
the frequency of testing. This is being resolved through the
DCA.
e) Informational Hearings. The Senate Business, Professions, and
Economic Development Committee held informational hearings on the
PDP issue on June 11, 2007 and March 10, 2008. The June 11, 2007
hearing focused on the findings of the 2007 BSA audit. The MBC
shortly thereafter voted to eliminate its PDP. The March 10,
2008 hearing examined how MBC and the other healthcare licensing
boards deal with licentiates with substance abuse and drug
addiction problems.
3.Prior Similar Legislation. AB 526 (Fuentes, 2009), similar to AB
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214, 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. This measure which passed out
of this Committee by a vote of 6 to 2, was placed on Senate
Appropriations suspense file and was held under submission.
AB 214 (Fuentes, 2008) would have created the Public Protection and
Physician Health Program Act of 2008 under the State Department of
Public Health . The Governor vetoed this bill and in his veto
message stated that it is inappropriate to separate the program from
the 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.
4.Previous Related Legislation. SB 1441 (Ridley-Thomas, Chapter 548,
Statutes of 2008) establishes in the DCA the SACC, which would be
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. SB 1441 also specifies that the program managers of the
diversion programs of specified boards are responsible for certain
duties previously assigned to the diversion evaluation committees
under those programs, and provides that diversion evaluation
committees created by any of the specified boards or committees
operate in an advisory role to the program manager of the diversion
program.
AB 2443 (Nakanishi) required Medical Board 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 Medical Board. 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 purpose of the
Board. The Board 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.
SB 761 (Ridley-Thomas, 2007), which died in the Assembly
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Appropriations Committee, would have extended the sunset date of the
Physician Diversion Program to July 1, 2010.
SB 231 (Figueroa, Chapter 674, Statutes of 2005), had various
provisions relating to Medical Board and specifically established a
January 1, 2009 sunset date for the Diversion Program.
5.Policy Issue : Does the Committee Have a Home? Legislation in the
past has attempted to place the Committee and the PHP under
different agencies; the Department of Public Health and then the
State and Consumer Services Agency. It is unclear if the Committee
would be the ultimate responsibility of the Department of Consumer
Affairs and under its jurisdiction, or if the Department would only
have responsibility as specified under this Act, such as approving
the vendor for implementing PHP.
6.Policy Issue : There is currently no funding mechanism for the
Committee and the PHP.
It is the intent of the Sponsors to try and resolve the funding issue
in the Appropriations Committee. In the past, it was anticipated
that licensing fees of the MBC would be used to fund this program.
If Board's fees are still intended to be utilized, then the
Committee may wish to review such a proposal since there may be an
impact to the Budget and funding of the Medical Board.
7.Suggested Author's Amendments:
a) The Committee should be required to comply with the
Administrative Procedures Act in promulgating any rules or
regulations, as specified. Suggest the following changes:
On Page 6, insert after the Public Records Act, the following:
" and California Administrative Procedures Act (Chapter 5
(commencing with Section 11500) of Division 3 or Title 2 of the
Government Code). "
b) To clarify that the rules adopted by the Committee are
consistent with Section 315 of the BPC (as well as with other
standards and guidelines), suggest the following changes:
On Page 6, line 4, insert after "with" the following: " the Uniform
Substance Abuse Standards as adopted by the Substance Abuse
Coordination Committee of the Department of Consumer Affairs, "
On Page 6, line 11, strike, "standards established" and insert the
following: " the Uniform Substance Abuse Standards as adopted by
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the Substance Abuse Coordination Committee of the Department of
Consumer Affairs, "
On Page 6, line 13, insert after "and community standards of
practice," following:
" the Uniform Substance Abuse Standards as adopted by the Substance
Abuse Coordination Committee of the Department of Consumer
Affairs, "
c) To make more clear that the Medical Board is to be notified
immediately when a participating physician violates terms of the
contract, suggest the following change:
On Page 6, line 39, strike "promptly" and insert the word
" immediately "
d) To clarify that the PHP is to have a system in place to report
physicians to the Medical Board who fail to meet the requirements
of the PHP, as specified, suggest the following change:
On Page 6, line 39 and 40, and on Page 7, line 1, after "surgeons"
strike "unable to practice safely to the board when, contrary to
agreements with the Physician Health Program, they continue to
practice unsafely" and instead insert the following: " who fail
to meet the requirements of the program as provided in
subdivision (e) of Section 2346. "
e) Since the Committee would at least have to adopt rules
regarding the standards, as stated above, a technical correction
is needed on Page 7, line 21, by striking "if any."
f) A technical correction is also needed regarding a reference to
Section 2346, on Page 7, line 15, and Page 9, line 29. The
reference should be to subsection "(e)" rather than subsection
"(c)."
g) It should be clear that the agreement made by the physician
and surgeon who participates in the PHP includes requirements and
conditions which are consistent with the rules adopted by the
Committee pursuant to subsection (e) of Section 2343.
On Page 7, line 37, after "program" insert the following: " shall
be consistent with the rules adopted by the committee pursuant to
subsection (e) of Section 2343, and "
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h) The PHP should be required to report to the Committee and the
Medical Board if the participant fails to meet the requirements
of the program as specified in subsection (e) (1) of Section
2346. There should not be a 2-day delay for the PHP to report to
the Board. Suggest the following:
On Page 8, line 25, after "participant to the" insert: " board and
the "
On Page 8, strike lines 36 and 37.
i) It should be clarified that any violation by a participant in
the PHP of the Uniform Substance Abuse Standards adopted by the
Committee, pursuant to subsection (e) of Section 2343, shall
require the PHP to report the name of the participant to the
Committee and the Medical Board. Suggest the following
additional language to subsection (e) of Section 2346:
On Page 8, line 28, after "or biological testing when required,"
insert the following: " or a violation of the Uniform Substance
Abuse Standards adopted pursuant to subsection (e) of Section
2343. "
j) It should be clear that any information regarding any
violation pursuant to subsection (e) (1) should be made available
to the Medical Board to pursue disciplinary action if necessary.
On Page 8, line 36, insert the following: "(2) Notwithstanding
Section 2344 (f), the report shall provide sufficient information
to permit the board to assess whether discipline or other action
is required to protect the public ."
On Page 8, line 39, after Section 2344, insert: " subdivision (e)
(1) of this Section "
SUPPORT AND OPPOSITION:
Support: (Co-Sponsors)
California Hospital Association
California Medical Association
California Psychiatric Association
California Society of Addiction Medicine.
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Opposition:
None on file as of April 18, 2012.
Consultant:Bill Gage