BILL ANALYSIS �
AB 2346
Page 1
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Susan A. Bonilla, Chair
AB 2346 (Gonzalez) - As Amended: April 23, 2014
SUBJECT : Physician and surgeon assistance program.
SUMMARY : Authorizes the Medical Board of California (MBC) to
establish a voluntary and confidential Physician and Surgeon
Assistance Program (Program) for impaired physicians and
surgeons modeled after the State Bar's Lawyer Assistance Program
(LAP). Specifically, this bill :
1)Authorizes MBC to establish a voluntary and confidential
Program to support recovering physicians and surgeons in their
rehabilitation and competent practice of medicine.
2)Requires the Program, if established, to aid physicians and
surgeons struggling with substance abuse, mental health
concerns, stress, burnout and other issues impacting their
productivity.
3)Requires that the Program be modeled after LAP.
4)Authorizes MBC to refer physicians and surgeons to the
Program, but states that neither acceptance into nor
participation in the Program will relieve the physician or
surgeon of any lawful duties and obligations as part of any
disciplinary action, as specified.
5)States that the confidentiality of information related to
participation in the Program shall be absolute unless waived
by a physician and surgeon or referenced as a condition of
probation, as specified.
6)Requires Program participants to be responsible for all
expenses relating to treatment and recovery.
7)Authorizes MBC to charge a reasonable administrative fee to
participants for the purpose of offsetting the costs of
maintaining the Program.
8)Requires, if a Program is established, MBC to actively engage
AB 2346
Page 2
in outreach activities to make physicians and surgeons, the
medical community, and the general public aware of the
existence and availability of the Program. Outreach may
include, but is not limited to, the development and
certification of minimum continuing education courses relating
to the prevention, detection, and treatment of substance
abuse, including no-cost and low-cost programs and materials.
EXISTING LAW :
1)Establishes MBC to administer and enforce the provisions of
the Medical Practice Act. (Business and Professions Code
(BPC) Section 2001)
2)Establishes a probation order as a public document, and
requires that it be posted on MBC's Web site for 10 years, as
specified. (BPC 803.1, 2027)
3)Establishes the Attorney Diversion and Assistance Act as a
means to identify and rehabilitate attorneys with impairment
due to abuse of drugs or alcohol, or due to mental illness,
affecting competency so that attorneys so afflicted may be
treated and returned to the practice of law in a manner that
will not endanger the public health and safety. (BPC
6230-6238)
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of this bill . This bill authorizes but does not
require MBC to create a program to assist physicians impaired
by substance abuse or illness through a voluntary and
confidential monitoring program modeled after the State Bar's
own assistance program for lawyers. This program is not
intended to revive MBC's now-defunct Diversion program or
affect the proceedings of any discipline for impaired
physicians. This bill is sponsored by the California Medical
Association.
2)Author's statement . According to the author's office,
"Physicians are the only licensed medical profession without a
wellness and treatment program for mental health and substance
abuse. Without a program, physicians will continue practicing
while trying to manage their problem without outside help
AB 2346
Page 3
presenting a significant public safety and health risk."
3)MBC's prior diversion program . MBC previously operated a
Diversion Program (Diversion) for impaired physicians from
1980 until 2008. Diversion re-routed substance abusing
physicians out of the enforcement program and into a
monitoring program intended to assist them in their recovery.
Participants were required to adhere to an agreement for a
five-year monitoring program, including random bodily fluids
testing, mandatory group meeting attendance, worksite
monitoring, and often substance abuse treatment and/or
psychotherapy. Those who complied with these terms and
maintained sobriety for three years were considered
"successfully terminated," (discharged) from the program
without facing disciplinary action. Those who violated the
agreement were "unsuccessfully terminated" and referred to the
enforcement program for discipline. Many of the physicians in
Diversion retained full and unrestricted medical licenses
during their participation and enjoyed complete
confidentiality.
Diversion was first audited in 2003 by a legislatively
mandated Enforcement Monitor (SB 1950 (Figureoa), Chapter
1085, Statues of 2002) and received its final review from the
Bureau of State Audits in 2007. Each report emphasized MBC's
inability or unwillingness to establish and maintain
sufficient quality controls in administering Diversion, and
pointed out problems including insufficient staff, inadequate
monitoring and reporting mechanisms, and deficient guidance.
In the first audit, it was recommended that MBC consider
contracting Diversion out to another entity because of MBC's
administrative failures, among other, numerous suggestions.
MBC did not make all of the recommended changes and Diversion
became inactive on July 1, 2008. The Osteopathic Medical
Board, the Board of Registered Nurses, Board of Pharmacy and
the Dental Board of California all currently have diversion
programs.
4) Post-Diversion . Without Diversion, impaired physicians
with substance abuse issues must find their own treatment
facility for assistance. MBC is not made aware that the
physician received treatment unless a complaint is
received, and the physician may present the treatment as
evidence in a disciplinary proceeding only if he or she
wishes.
AB 2346
Page 4
However, MBC still retains the power to currently order
biological fluid testing as a condition of probation. Each
physician must find a collector to perform random drug testing
as required by MBC's Probation Unit, and the collector must
meet the testing requirements set out in the terms and
conditions of probation. If the physician tests positive, MBC
revokes probation and investigates whether the physician is
safe to practice medicine. If not, MBC staff will seek an
Interim Suspension Order or ask the physician to agree not to
practice via a stipulated agreement.
This bill authorizes MBC to establish a voluntary treatment
program which builds upon the biological fluid monitoring
requirement. This bill does not authorize the Program to
divert impaired physicians from the disciplinary process as
did the prior Diversion program. It would instead allow MBC to
refer physicians to it in addition to any other disciplinary
proceedings. This program would be modelled after the State
Bar's LAP.
5)The State Bar's Lawyer Assistance Program . The Attorney
Diversion and Assistance Act was established in 2001 to assist
attorneys with substance abuse or mental health problems. The
program consists of two parts - a diversion portion
("Alternative Discipline Program,") and a support and
monitoring program termed the Lawyer Assistance Program (LAP).
This bill authorizes MBC to establish its own Program based
on LAP.
LAP operates on a "case management" model. An attorney
calling LAP is assigned to a local Case Manager (CM) who is a
licensed clinician experienced in the areas of substance abuse
and mental health. This may be a licensed clinical social
worker or a marriage and family therapist with a minimum two
years' case management experience in a substance abuse
program. The CM immediately addresses any life-threatening
issues, handles medical needs, and provides emotional support.
A new participant immediately begins attending the closest
professionally-facilitated LAP support group and other
self-help groups as appropriate. Shortly thereafter, the
attorney completes a comprehensive assessment with the CM and
is referred to medical and psychiatric professionals for
further evaluation, if indicated.
AB 2346
Page 5
The participant meets regularly with the CM, meets weekly with
a professionally facilitated support group, and more
frequently with other self-help groups. Inpatient or
outpatient treatment also begins, if necessary. The attorney
also meets with an Evaluation Committee (clinicians and
attorneys experienced in recovery) which has reviewed reports
from the CM, Group Facilitator, and other service providers.
The individualized components of a recommended long-term
recovery plan are also determined and proposed to the
participant.
The CM, Group Facilitator, and Evaluation Committee follow the
participant throughout his or her program of structured
recovery, and the Committee eventually determines when the
participant has successfully completed the program. The LAP
also offers all State Bar members two sessions of short-term
counseling free of charge with a local therapist who
specializes in working with legal professionals. This
counseling service addresses common problems such as stress,
burnout, relationship conflicts, and career concerns, and is
intended to identify and treat potential problems at the
earliest possible stage.
6)Author's amendment . On page 3, line 7, add "2373. If the
board establishes a program, the board shall contract out for
the program's administration."
As requested by the author, this amendment will require MBC to
remove itself from managing the day-to-day operations of the
Program by allowing it to contract out Program administration
to a third party. This is meant avoid any problems with MBC
managing its own program, an issue that hindered the previous
and now-defunct Diversion program.
7)Arguments in support . The California Medical Association
writes, "California is one of just a few states nationwide
that does not currently provide a physician health program to
coordinate care and monitor physicians suffering from mental
health, behavioral health, or substance abuse issues. In
fact, physicians are the only licensed medical profession in
the state without an assistance program for mental health and
substance abuse. From 1980 to 2007, the MBC provided a
physician wellness program that was ended in 2007 because of
problems with program administration and how the program
interacted with the disciplinary process regarding physicians.
AB 2346
Page 6
"Without a wellness program physicians and surgeons suffering
from mental health or substance abuse problems often do not
know where to turn to for help and many will continue
practicing while attempting to manage their problem on their
own. This presents a significant public health and safety
risk.
"AB 2346 would authorize the MBC to contract with a third
party to administer a wellness and treatment program for
California's physicians and surgeons. By requiring that the
MBC contract with a third party for the program's
administration, this bill will avoid the problems associated
with MBC management of a treatment program for physicians and
surgeons they are tasked with regulating. Furthermore, this
bill is clear that any treatment a physician or surgeon
receives as part of the program cannot be in lieu of any
disciplinary proceeding.
"California is currently suffering from a shortage of
physicians that will only be exacerbated with the introduction
of over 2 million new enrollees entering the healthcare system
through Covered California and Medi-Cal expansion. It is
critical that we protect and preserve those physicians
currently practicing in California and provide them with the
same type of treatment assistance that other licensed
professionals receive including attorneys, pharmacists, and
nurses."
8)Arguments in opposition . The Center for Public Interest Law
(CPIL) writes, "Since 2008 when MBC's [Diversion] program was
abolished, CMA and CSAM (and other physician groups) have
sponsored at least three bills to re-create some kind of a
state-run, state-sponsored program for substance-abusing
physicians: AB 214 in 2008 (vetoed), AB 526 in 2009-10 (did
not get out of the Legislature), and - most recently - SB 1438
in 2012 (which also did not get out of the Legislature).
"In particular, SB 1438 was pulled after it was discovered
that CMA was structuring the bill so as to ensure that a
nonproft organization it had created - California Public
Protection and Physician Health, Inc. (CPPPH) - would secure
the contract to administer the program. "Many of the
directors and managers of CPPPH are connected to CMA and are
some of the exact same individuals who sat on the Liaison
AB 2346
Page 7
Committee for 24 years and failed to act while MBC's Diversion
Program failed four performance audits.
"AB 2346 (Gonzalez) is the latest bill in this effort - but,
as currently written, it lacks numerous provisions and
safeguards seen in all of the other bills.
"CPIL has no opposition to physician rehabilitation and/or
recovery from substance abuse, a problem that is particularly
serious in the medical profession due to the stress and access
to drugs that are inherent in the profession. However, the
State of California need not be involved in an individual
physician's personal journey to recovery - especially when
there are literally thousands of private programs to assist
substance-abusing individuals in this effort. It is dubious
whether public money (in the form of physician licensing fees
paid to the State to fund the Enforcement Program of the
Medical Board) should be used to monitor the behavior of
dangerous physicians who pose serious and significant risks of
harm to patients every day. MBC's "paramount priority" is
public protection, not physician rehabilitation.
"In addition to the fact that a program like this should not
be placed within a state regulatory agency, it is wholly
unnecessary in light of the thousands of private alternatives
available today for substance-abusing physicians."
9)Previous legislation . SB 1483 (Steinberg) of 2012, would have
created the Physician Health, Awareness, and Monitoring
Quality Act and established the Physician Health Program, a
referral and monitoring program for physicians, medical
students, and medical residents seeking treatment for alcohol
or substance abuse, a mental disorder, or other health
conditions. That bill was held on the Assembly Floor.
REGISTERED SUPPORT / OPPOSITION :
Support
California Medical Association (sponsor)
Opposition
Center for Public Interest Law
AB 2346
Page 8
Analysis Prepared by : Sarah Huchel / B.,P. & C.P. / (916)
319-3301