BILL ANALYSIS �
------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 1483|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: SB 1483
Author: Steinberg (D)
Amended: 5/29/12
Vote: 21
SENATE BUSINESS, PROF. & ECON. DEVELOP. COM : 7-0, 04/23/12
AYES: Price, Emmerson, Corbett, Correa, Hernandez,
Strickland, Wyland
NO VOTE RECORDED: Negrete McLeod, Vargas
SENATE APPROPRIATIONS COMMITTEE : 5-2, 5/24/12
AYES: Kehoe, Alquist, Lieu, Price, Steinberg
NOES: Walters, Dutton
SUBJECT : Physicians and surgeons
SOURCE : California Hospital Association
California Medical Association
California Psychiatric Association
California Society of Addiction Medicine
DIGEST : This bill 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 program would 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. This bill provides for referral
CONTINUED
SB 1483
Page
2
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. This bill 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. This bill requires the Committee
to report to the DCA on the outcome of the PHP and requires
regular audits of the program.
ANALYSIS : 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 diversion evaluation committees 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 diversion evaluation committees for acceptance,
denial or termination of physicians and surgeons in the
diversion program.
4. Establishes in the DCA the Substance Abuse
Coordination Committee, 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.
5. Requires the Substance Abuse Coordination Committee
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.
CONTINUED
SB 1483
Page
3
6. 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.
7. 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.
This bill:
1. Makes the following findings and declarations:
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.
1. 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
CONTINUED
SB 1483
Page
4
mechanism for monitoring treatment.
2. Defines "Committee" as the Physician Health,
Awareness, and Monitoring Quality Oversight Committee,
as specified.
3. 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.
4. 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.
5. 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.
6. Requires the PHP to do all of the following:
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
CONTINUED
SB 1483
Page
5
physicians and surgeons who have a qualifying illness
and who are not on probation with the Board.
1. Establishes the Committee within DCA 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.
2. Provides that the Committee shall be formed no later
than April 1, 2013.
3. 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.
E. Four members of the public, as specified.
1. 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.
2. Provides that the Committee shall be subject to the
CONTINUED
SB 1483
Page
6
Bagley-Keene Open Meetings Act, the California Public
Records Act, and the California Administrative
Procedures Act.
3. 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.
1. Requires that the rules adopted by the Committee
shall be consistent with the Uniform Standards
Regarding Substance-Abusing Healing Arts Licensees as
adopted by the Substance Abuse Coordination Committee
of DCA pursuant to Section 315 of the Business and
Professions Code, 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
Section 315 and the guidelines of the Federation of
State Physician Health Programs, Inc., and community
CONTINUED
SB 1483
Page
7
standards of practice, Section 315 shall prevail.
2. 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 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.
3. 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.
4. 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 immediately reporting physicians
and surgeons to the Medical Board of California
(Board) who fail to meet the requirements of the PHP.
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.
CONTINUED
SB 1483
Page
8
E. Report annually, beginning October 1, 2014, 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. Sunsets this requirement on October
1, 2018.
F. Submit to periodic audits and inspections of all
operations, records, and management related to the PHP
to ensure compliance with the requirements of this Act
and its implementing rules and regulations. 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.
1. Requires a physician and surgeon as a condition of
participation in the PHP to enter into an individual
agreement with the PHP and agrees to pay expenses
related to treatment, monitoring, laboratory test, and
other activities specified in the participants written
agreement with the PHP, consistent with the standards
adopted by the Committee, 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.
CONTINUED
SB 1483
Page
9
D. Conditions and terms for return to practice.
E. Criteria for program completion.
F. Criteria for termination of the participant from
the program.
G. A stipulation that expenses related to treatment,
monitoring, laboratory tests, and other activities
specified in the participant's written agreement with
the PHP will be paid by the participant.
1. 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.
2. 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 and procedures in the agreement.
1. Requires the PHP to immediately report the name of a
participant to the Board and the Committee when it
learns of the participant's failure to meet the
requirements of the PHP including failure to cease
practice when required, failure to submit to
evaluation, treatment, or biological testing when
required, or a violation of the rules adopted the
CONTINUED
SB 1483
Page
10
Committee. 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.
2. Requires the report provide sufficient information to
permit the Board to assess whether discipline or other
action is required to protect the public.
3. 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.
4. 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.
5. 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.
6. Increases the biennial license renewal fee by $39.50,
and requires MBC transfer the increase to the Physician
Health, Awareness, and Monitoring Quality Trust Fund,
which is created in the State Treasury. Specifies
nothing in the bill shall be construed to prohibit
additional funding from private sources from being used
CONTINUED
SB 1483
Page
11
to support operations of the PHP or to support the
establishment of the Committee and PHP.
Background
Physician Diversion Program 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.
Audits of the Physician Diversion Program. The BSA audited
the PDP four times between 1982 and 2007. In 2005, a
CONTINUED
SB 1483
Page
12
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 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,
CONTINUED
SB 1483
Page
13
2007 to accommodate the 203 physicians already in the
program.
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 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
CONTINUED
SB 1483
Page
14
Local: No
According to the Senate Appropriations Committee, unknown,
major program costs likely in the range of $1.5 million to
$2 million annually to the Department of Consumer Affairs.
SUPPORT : (Verified 4/24/12) (per Senate Business,
Professions & Economic Developmental Committee analysis -
unable to reverify at time of writing)
California Hospital Association (co-source)
California Medical Association (co-source)
California Psychiatric Association (co-source)
California Society of Addiction Medicine (co-source)
JJA:nl 5/29/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED