BILL NUMBER: SB 1441 CHAPTERED
BILL TEXT
CHAPTER 548
FILED WITH SECRETARY OF STATE SEPTEMBER 28, 2008
APPROVED BY GOVERNOR SEPTEMBER 28, 2008
PASSED THE SENATE AUGUST 20, 2008
PASSED THE ASSEMBLY AUGUST 18, 2008
AMENDED IN ASSEMBLY AUGUST 14, 2008
AMENDED IN ASSEMBLY AUGUST 8, 2008
AMENDED IN ASSEMBLY JULY 3, 2008
AMENDED IN ASSEMBLY JUNE 16, 2008
AMENDED IN SENATE MAY 7, 2008
AMENDED IN SENATE APRIL 7, 2008
INTRODUCED BY Senator Ridley-Thomas
FEBRUARY 21, 2008
An act to amend Sections 1695.1, 1695.5, 1695.6, 1697, 1698, 2361,
2365, 2366, 2367, 2369, 2663, 2665, 2666, 2770.1, 2770.7, 2770.8,
2770.11, 2770.12, 3501, 3534.1, 3534.3, 3534.4, 3534.9, and 4371 of,
and to add Article 3.6 (commencing with Section 315) to Chapter 4 of
Division 1 of, the Business and Professions Code, relating to health
care.
LEGISLATIVE COUNSEL'S DIGEST
SB 1441, Ridley-Thomas. Healing arts practitioners: substance
abuse.
Existing law requires various healing arts licensing boards,
including the Dental Board of California, the Board of Registered
Nursing, the Physical Therapy Board of California, the Physician
Assistant Committee, the Osteopathic Medical Board of California, and
the California State Board of Pharmacy to establish and administer
diversion or recovery programs or diversion evaluation committees for
the rehabilitation of healing arts practitioners whose competency is
impaired due to the abuse of drugs or alcohol, and gives the
diversion evaluation committees certain duties related to termination
of a licensee from the diversion program and reporting termination,
designing treatment programs, denying participation in the program,
reviewing activities and performance of contractors, determining
completion of the program, and purging and destroying records, as
specified. Existing law requires the California State Board of
Pharmacy to contract with one or more qualified contractors to
administer the pharmacists recovery program and requires the board to
review the pharmacists recovery program on a quarterly basis, as
specified.
This bill would establish in the Department of Consumer Affairs
the Substance Abuse Coordination Committee, which would be comprised
of the executive officers of the department's healing arts licensing
boards, as specified, and a designee of the State Department of
Alcohol Drug Programs. The bill would require the committee to
formulate, by January 1, 2010, uniform and specific standards in
specified areas that each healing arts board would be required to use
in dealing with substance-abusing licensees. The bill would specify
that the program managers of the diversion programs for the Dental
Board of California, the Board of Registered Nursing, the Physical
Therapy Board of California, the Physician Assistant Committee, and
the Osteopathic Medical Board of California, as designated by the
executive officers of those entities, are responsible for certain
duties, including, as specified, duties related to termination of a
licensee from the diversion program, the review and evaluation of
recommendations of the committee, approving the designs of treatment
programs, denying participation in the program, reviewing activities
and performance of contractors, and determining completion of the
program. The bill would also provide that diversion evaluation
committees created by any of the specified boards or committees
operate under the direction of the program manager of the diversion
program, and would require those diversion evaluation committees to
make certain recommendations. The bill would require the executive
officer of the California State Board of Pharmacy to designate a
program manager of the pharmacists recovery program, and would
require the program manager to review the pharmacists recovery
program quarterly and to work with the contractors, as specified. The
bill would set forth provisions regarding entry of a registered
nurse into the diversion program and the investigation and discipline
of registered nurses who are in, or have been in, the diversion
program, and would require registered nurses in the diversion program
to sign an agreement of understanding regarding withdrawal or
termination from the program, as specified.
The bill would specify that the diversion program responsibilities
imposed on licensing boards under these provisions shall be
considered current operating expenses of those boards.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and declares all of the
following:
(a) Substance abuse is an increasing problem in the health care
professions, where the impairment of a health care practitioner for
even one moment can mean irreparable harm to a patient.
(b) Several health care licensing boards have "diversion programs"
designed to identify substance-abusing licensees, direct them to
treatment and monitoring, and return them to practice in a manner
that will not endanger the public health and safety.
(c) Substance abuse monitoring programs, particularly for health
care professionals, must operate with the highest level of integrity
and consistency. Patient protection is paramount.
(d) The diversion program of the Medical Board of California,
created in 1981, has been subject to five external performance audits
in its 27-year history and has failed all five audits, which
uniformly concluded that the program has inadequately monitored
substance-abusing physicians and has failed to promptly terminate
from the program, and appropriately refer for discipline, physicians
who do not comply with the terms and conditions of the program, thus
placing patients at risk of harm.
(e) The medical board's diversion program has failed to protect
patients from substance-abusing physicians, and the medical board has
properly decided to cease administering the program effective June
30, 2008.
(f) The administration of diversion programs created at other
health care boards has been contracted to a series of private
vendors, and none of those vendors has ever been subject to a
performance audit, such that it is not possible to determine whether
those programs are effective in monitoring substance-abusing
licensees and assisting them to recover from their addiction in the
long term.
(g) Various health care licensing boards have inconsistent or
nonexistent standards that guide the way they deal with
substance-abusing licensees.
(h) Patients would be better protected from substance-abusing
licensees if their regulatory boards agreed to and enforced
consistent and uniform standards and best practices in dealing with
substance-abusing licensees.
SEC. 2. It is the intent of the Legislature that:
(a) Pursuant to Section 156.1 of the Business and Professions Code
and Section 8546.7 of the Government Code, that the Department of
Consumer Affairs conduct a thorough audit of the effectiveness,
efficiency, and overall performance of the vendor chosen by the
department to manage diversion programs for substance-abusing
licensees of health care licensing boards created in the Business and
Professions Code, and make recommendations regarding the
continuation of the programs and any changes or reforms required 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.
(b) The audit shall identify, by type of board licensee, the
percentage of self-referred participants, board-referred
participants, and board-ordered participants. The audit shall
describe in detail the diversion services provided by the vendor,
including all aspects of bodily fluids testing, including, but not
limited to, frequency of testing, randomnicity, method of notice to
participants, number of hours between the provision of notice and the
test, standards for specimen collectors, procedures used by specimen
collectors, such as whether the collection process is observed by
the collector, location of testing, and average timeframe from the
date of the test to the date the result of the test becomes
available; group meeting attendance requirements, including, but not
limited to, required qualifications for group meeting facilitators,
frequency of required meeting attendance, and methods of documenting
and reporting attendance or nonattendance by program participants;
standards used in determining whether inpatient or outpatient
treatment is necessary; and, if applicable, worksite monitoring
requirements and standards. The audit shall review the timeliness of
diversion services provided by the vendor; the thoroughness of
documentation of treatment, aftercare, and monitoring services
received by participants; and the thoroughness of documentation of
the effectiveness of the treatment and aftercare services received by
participants. In determining the effectiveness and efficiency of the
vendor, the audit shall evaluate the vendor's approval process for
providers or contractors that provide diversion services, including
specimen collectors, group meeting facilitators, and worksite
monitors; the vendor's disapproval of providers or contractors that
fail to provide effective or timely diversion services; and the
vendor's promptness in notifying the boards when a participant fails
to comply with the terms of his or her diversion contract or the
rules of the board's program. The audit shall also recommend whether
the vendor should be more closely monitored by the department,
including whether the vendor should provide the department with
periodic reports demonstrating the timeliness and thoroughness of
documentation of noncompliance with diversion program contracts and
regarding its approval and disapproval of providers and contractors
that provide diversion services.
(c) The vendor and its staff shall cooperate with the department
and shall provide data, information, and case files as requested by
the department to perform all of his or her duties. The provision of
confidential data, information, and case files from health
care-related boards and the vendor to the department shall not
constitute a waiver of any exemption from disclosure or discovery or
of any confidentiality protection or privilege otherwise provided by
law that is applicable to the data, information, or case files. It is
the Legislature's intent that the audit be completed by June 30,
2010, and on subsequent years thereafter as determined by the
department.
SEC. 3. Article 3.6 (commencing with Section 315) is added to
Chapter 4 of Division 1 of the Business and Professions Code, to
read:
Article 3.6. Uniform Standards Regarding Substance-Abusing
Healing Arts Licensees
315. (a) For the purpose of determining uniform standards that
will be used by healing arts boards in dealing with substance-abusing
licensees, there is established in the Department of Consumer
Affairs the Substance Abuse Coordination Committee. The committee
shall be comprised of the executive officers of the department's
healing arts boards established pursuant to Division 2 (commencing
with Section 500), the State Board of Chiropractic Examiners, the
Osteopathic Medical Board of California, and a designee of the State
Department of Alcohol and Drug Programs. The Director of Consumer
Affairs shall chair the committee and may invite individuals or
stakeholders who have particular expertise in the area of substance
abuse to advise the committee.
(b) The committee shall be subject to the Bagley-Keene Open
Meeting Act (Article 9 (commencing with Section 11120) of Division 3
of Title 2 of the Government Code).
(c) By January 1, 2010, the committee shall formulate uniform and
specific standards in each of the following 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:
(1) Specific requirements for a clinical diagnostic evaluation of
the licensee, including, but not limited to, required qualifications
for the providers evaluating the licensee.
(2) Specific requirements for the temporary removal of the
licensee from practice, in order to enable the licensee to undergo
the clinical diagnostic evaluation described in subdivision (a) and
any treatment recommended by the evaluator described in subdivision
(a) and approved by the board, and specific criteria that the
licensee must meet before being permitted to return to practice on a
full-time or part-time basis.
(3) Specific requirements that govern the ability of the licensing
board to communicate with the licensee's employer about the licensee'
s status and condition.
(4) Standards governing all aspects of required testing,
including, but not limited to, frequency of testing, randomnicity,
method of notice to the licensee, number of hours between the
provision of notice and the test, standards for specimen collectors,
procedures used by specimen collectors, the permissible locations of
testing, whether the collection process must be observed by the
collector, backup testing requirements when the licensee is on
vacation or otherwise unavailable for local testing, requirements for
the laboratory that analyzes the specimens, and the required maximum
timeframe from the test to the receipt of the result of the test.
(5) Standards governing all aspects of group meeting attendance
requirements, including, but not limited to, required qualifications
for group meeting facilitators, frequency of required meeting
attendance, and methods of documenting and reporting attendance or
nonattendance by licensees.
(6) Standards used in determining whether inpatient, outpatient,
or other type of treatment is necessary.
(7) Worksite monitoring requirements and standards, including, but
not limited to, required qualifications of worksite monitors,
required methods of monitoring by worksite monitors, and required
reporting by worksite monitors.
(8) Procedures to be followed when 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) Specific consequences for major violations and minor
violations. In particular, the committee shall consider the use of a
"deferred prosecution" stipulation similar to the stipulation
described in Section 1000 of the Penal Code, in which the licensee
admits to self-abuse of drugs or alcohol and surrenders his or her
license. That agreement is deferred by the agency unless or until the
licensee commits a major violation, in which case it is revived and
the license is surrendered.
(11) Criteria that a licensee must meet in order to petition for
return to practice on a full-time basis.
(12) Criteria that a licensee must meet in order to petition for
reinstatement of a full and unrestricted license.
(13) If a board uses a private-sector vendor that provides
diversion services, standards for immediate reporting by the vendor
to the board of any and all noncompliance with any term of the
diversion contract or probation; standards for the vendor's approval
process for providers or contractors that provide diversion services,
including, but not limited to, specimen collectors, group meeting
facilitators, and worksite monitors; standards requiring the vendor
to disapprove and discontinue the use of providers or contractors
that fail to provide effective or timely diversion services; and
standards for a licensee's termination from the program and referral
to enforcement.
(14) If a board uses a private-sector vendor that provides
diversion services, the extent to which licensee participation in
that program shall be kept confidential from the public.
(15) If a board uses a private-sector vendor that provides
diversion services, a schedule for external independent audits of the
vendor's performance in adhering to the standards adopted by the
committee.
(16) Measurable criteria and standards to determine whether each
board's method of dealing with substance-abusing licensees protects
patients from harm and is effective in assisting its licensees in
recovering from substance abuse in the long term.
SEC. 4. Section 1695.1 of the Business and Professions Code is
amended to read:
1695.1. As used in this article:
(a) "Board" means the Board of Dental Examiners of California.
(b) "Committee" means a diversion evaluation committee created by
this article.
(c) "Program manager" means the staff manager of the diversion
program, as designated by the executive officer of the board. The
program manager shall have background experience in dealing with
substance abuse issues.
SEC. 5. Section 1695.5 of the Business and Professions Code is
amended to read:
1695.5. (a) The board shall establish criteria for the
acceptance, denial, or termination of licentiates in a diversion
program. Unless ordered by the board as a condition of licentiate
disciplinary probation, only those licentiates who have voluntarily
requested diversion treatment and supervision by a committee shall
participate in a diversion program.
(b) A licentiate who is not the subject of a current investigation
may self-refer to the diversion program on a confidential basis,
except as provided in subdivision (f).
(c) A licentiate under current investigation by the board may also
request entry into the diversion program by contacting the board's
Diversion Program Manager. The Diversion Program Manager may refer
the licentiate requesting participation in the program to a diversion
evaluation committee for evaluation of eligibility. Prior to
authorizing a licentiate to enter into the diversion program, the
Diversion Program Manager may require the licentiate, while under
current investigation for any violations of the Dental Practice Act
or other violations, to execute a statement of understanding that
states that the licentiate understands that his or her violations of
the Dental Practice Act or other statutes that would otherwise be the
basis for discipline, may still be investigated and the subject of
disciplinary action.
(d) If the reasons for a current investigation of a licentiate are
based primarily on the self-administration of any controlled
substance or dangerous drugs or alcohol under Section 1681 of the
Business and Professions Code, or the illegal possession,
prescription, or nonviolent procurement of any controlled substance
or dangerous drugs for self-administration that does not involve
actual, direct harm to the public, the board shall close the
investigation without further action if the licentiate is accepted
into the board's diversion program and successfully completes the
requirements of the program. If the licentiate withdraws or is
terminated from the program by a diversion evaluation committee, and
the termination is approved by the program manager, the investigation
shall be reopened and disciplinary action imposed, if warranted, as
determined by the board.
(e) Neither acceptance nor participation in the diversion program
shall preclude the board from investigating or continuing to
investigate, or taking disciplinary action or continuing to take
disciplinary action against, any licentiate for any unprofessional
conduct committed before, during, or after participation in the
diversion program.
(f) All licentiates shall sign an agreement of understanding that
the withdrawal or termination from the diversion program at a time
when a diversion evaluation committee determines the licentiate
presents a threat to the public's health and safety shall result in
the utilization by the board of diversion treatment records in
disciplinary or criminal proceedings.
(g) Any licentiate terminated from the diversion program for
failure to comply with program requirements is subject to
disciplinary action by the board for acts committed before, during,
and after participation in the diversion program. A licentiate who
has been under investigation by the board and has been terminated
from the diversion program by a diversion evaluation committee shall
be reported by the diversion evaluation committee to the board.
SEC. 6. Section 1695.6 of the Business and Professions Code is
amended to read:
1695.6. A committee created under this article operates under the
direction of the program manager. The program manager has the
primary responsibility to review and evaluate recommendations of the
committee. Each committee shall have the following duties and
responsibilities:
(a) To evaluate those licentiates who request to participate in
the diversion program according to the guidelines prescribed by the
board and to make recommendations. In making the recommendations, a
committee shall consider the recommendations of any licentiates
designated by the board to serve as consultants on the admission of
the licentiate to the diversion program.
(b) To review and designate those treatment facilities to which
licentiates in a diversion program may be referred.
(c) To receive and review information concerning a licentiate
participating in the program.
(d) To consider in the case of each licentiate participating in a
program whether he or she may with safety continue or resume the
practice of dentistry.
(e) To perform such other related duties, under the direction of
the board or program manager, as the board may by regulation require.
SEC. 7. Section 1697 of the Business and Professions Code is
amended to read:
1697. Each licentiate who requests participation in a diversion
program shall agree to cooperate with the treatment program designed
by the committee and approved by the program manager and to bear all
costs related to the program, unless the cost is waived by the board.
Any failure to comply with the provisions of a treatment program may
result in termination of the licentiate's participation in a
program.
SEC. 8. Section 1698 of the Business and Professions Code is
amended to read:
1698. (a) After the committee and the program manager in their
discretion have determined that a licentiate has been rehabilitated
and the diversion program is completed, the committee shall purge and
destroy all records pertaining to the licentiate's participation in
a diversion program.
(b) Except as authorized by subdivision (f) of Section 1695.5, all
board and committee records and records of proceedings pertaining to
the treatment of a licentiate in a program shall be kept
confidential and are not subject to discovery or subpoena.
SEC. 9. Section 2361 of the Business and Professions Code is
amended to read:
2361. As used in this article:
(a) "Board" means the Osteopathic Medical Board of California.
(b) "Diversion program" means a treatment program created by this
article for osteopathic physicians and surgeons whose competency may
be threatened or diminished due to abuse of drugs or alcohol.
(c) "Committee" means a diversion evaluation committee created by
this article.
(d) "Participant" means a California licensed osteopathic
physician and surgeon.
(e) "Program manager" means the staff manager of the diversion
program, as designated by the executive officer of the board. The
program manager shall have background experience in dealing with
substance abuse issues.
SEC. 10. Section 2365 of the Business and Professions Code is
amended to read:
2365. (a) The board shall establish criteria for the acceptance,
denial, or termination of participants in the diversion program.
Unless ordered by the board as a condition of disciplinary probation,
only those participants who have voluntarily requested diversion
treatment and supervision by a committee shall participate in the
diversion program.
(b) A participant who is not the subject of a current
investigation may self-refer to the diversion program on a
confidential basis, except as provided in subdivision (f).
(c) A participant under current investigation by the board may
also request entry into the diversion program by contacting the board'
s Diversion Program Manager. The Diversion Program Manager may refer
the participant requesting participation in the program to a
diversion evaluation committee for evaluation of eligibility. Prior
to authorizing a licentiate to enter into the diversion program, the
Diversion Program Manager may require the licentiate, while under
current investigation for any violations of the Medical Practice Act
or other violations, to execute a statement of understanding that
states that the licentiate understands that his or her violations of
the Medical Practice Act or other statutes that would otherwise be
the basis for discipline may still be investigated and the subject of
disciplinary action.
(d) If the reasons for a current investigation of a participant
are based primarily on the self-administration of any controlled
substance or dangerous drugs or alcohol under Section 2239, or the
illegal possession, prescription, or nonviolent procurement of any
controlled substance or dangerous drugs for self-administration that
does not involve actual, direct harm to the public, the board may
close the investigation without further action if the licentiate is
accepted into the board's diversion program and successfully
completes the requirements of the program. If the participant
withdraws or is terminated from the program by a diversion evaluation
committee, and the termination is approved by the program manager,
the investigation may be reopened and disciplinary action imposed, if
warranted, as determined by the board.
(e) Neither acceptance nor participation in the diversion program
shall preclude the board from investigating or continuing to
investigate, or taking disciplinary action or continuing to take
disciplinary action against, any participant for any unprofessional
conduct committed before, during, or after participation in the
diversion program.
(f) All participants shall sign an agreement of understanding that
the withdrawal or termination from the diversion program at a time
when a diversion evaluation committee determines the licentiate
presents a threat to the public's health and safety shall result in
the utilization by the board of diversion treatment records in
disciplinary or criminal proceedings.
(g) Any participant terminated from the diversion program for
failure to comply with program requirements is subject to
disciplinary action by the board for acts committed before, during,
and after participation in the diversion program. A participant who
has been under investigation by the board and has been terminated
from the diversion program by a diversion evaluation committee shall
be reported by the diversion evaluation committee to the board.
SEC. 11. Section 2366 of the Business and Professions Code is
amended to read:
2366. A committee created under this article operates under the
direction of the diversion program manager. The program manager has
the primary responsibility to review and evaluate recommendations of
the committee. Each committee shall have the following duties and
responsibilities:
(a) To evaluate those licensees who request participation in the
program according to the guidelines prescribed by the board, and to
make recommendations.
(b) To review and designate those treatment facilities and
services to which a participant in the program may be referred.
(c) To receive and review information concerning participants in
the program.
(d) To consider whether each participant in the treatment program
may safely continue or resume the practice of medicine.
(e) To prepare quarterly reports to be submitted to the board,
which include, but are not limited to, information concerning the
number of cases accepted, denied, or terminated with compliance or
noncompliance and a cost analysis of the program.
(f) To promote the program to the public and within the
profession, including providing all current licentiates with written
information concerning the program.
(g) To perform such other related duties, under the direction of
the board or the program manager, as the board may by regulation
require.
SEC. 12. Section 2367 of the Business and Professions Code is
amended to read:
2367. (a) Each licensee who requests participation in a treatment
program shall agree to cooperate with the treatment program designed
by the committee and approved by the program manager. The committee
shall inform each participant in the program of the procedures
followed, the rights and responsibilities of the participant, and the
possible results of noncompliance with the program. Any failure to
comply with the treatment program may result in termination of
participation.
(b) Participation in a program under this article shall not be a
defense to any disciplinary action which may be taken by the board.
Further, no provision of this article shall preclude the board from
commencing disciplinary action against a licensee who is terminated
from a program established pursuant to this article.
SEC. 13. Section 2369 of the Business and Professions Code is
amended to read:
2369. (a) After the committee and the program manager, in their
discretion, have determined that a participant has been rehabilitated
and the program is completed, the committee shall purge and destroy
all records pertaining to the participation in a treatment program.
(b) Except as authorized by subdivision (f) of Section 2365, all
board and committee records and records of proceedings pertaining to
the treatment of a participant in a program shall be confidential and
are not subject to discovery or subpoena except in the case of
discovery or subpoena in any criminal proceeding.
SEC. 14. Section 2663 of the Business and Professions Code is
amended to read:
2663. The board shall establish and administer a diversion
program for the rehabilitation of physical therapists and physical
therapist assistants whose competency is impaired due to the abuse of
drugs or alcohol. The board may contract with any other state agency
or a private organization to perform its duties under this article.
The board may establish one or more diversion evaluation committees
to assist it in carrying out its duties under this article. Any
diversion evaluation committee established by the board shall operate
under the direction of the diversion program manager, as designated
by the executive officer of the board. The program manager has the
primary responsibility to review and evaluate recommendations of the
committee.
SEC. 15. Section 2665 of the Business and Professions Code is
amended to read:
2665. Each diversion evaluation committee has the following
duties and responsibilities:
(a) To evaluate physical therapists and physical therapist
assistants who request participation in the program and to make
recommendations. In making recommendations, the committee shall
consider any recommendations from professional consultants on the
admission of applicants to the diversion program.
(b) To review and designation of treatment facilities to which
physical therapists and physical therapist assistants in the
diversion program may be referred.
(c) To receive and review information concerning
physical therapists and physical therapist assistants participating
in the program.
(d) Calling meetings as necessary to consider the requests of
physical therapists and physical therapist assistants to participate
in the diversion program, to consider reports regarding participants
in the program, and to consider any other matters referred to it by
the board.
(e) To consider whether each participant in the diversion program
may with safety continue or resume the practice of physical therapy.
(f) To set forth in writing the terms and conditions of the
diversion agreement that is approved by the program manager for each
physical therapist and physical therapist assistant participating in
the program, including treatment, supervision, and monitoring
requirements.
(g) Holding a general meeting at least twice a year, which shall
be open and public, to evaluate the diversion program's progress, to
prepare reports to be submitted to the board, and to suggest
proposals for changes in the diversion program.
(h) For the purposes of Division 3.6 (commencing with Section 810)
of Title 1 of the Government Code, any member of a diversion
evaluation committee shall be considered a public employee. No board
or diversion evaluation committee member, contractor, or agent
thereof, shall be liable for any civil damage because of acts or
omissions which may occur while acting in good faith in a program
established pursuant to this article.
SEC. 16. Section 2666 of the Business and Professions Code is
amended to read:
2666. (a) Criteria for acceptance into the diversion program
shall include all of the following:
(1) The applicant shall be licensed as a physical therapist or
approved as a physical therapist assistant by the board and shall be
a resident of California.
(2) The applicant shall be found to abuse dangerous drugs or
alcoholic beverages in a manner which may affect his or her ability
to practice physical therapy safely or competently.
(3) The applicant shall have voluntarily requested admission to
the program or shall be accepted into the program in accordance with
terms and conditions resulting from a disciplinary action.
(4) The applicant shall agree to undertake any medical or
psychiatric examination ordered to evaluate the applicant for
participation in the program.
(5) The applicant shall cooperate with the program by providing
medical information, disclosure authorizations, and releases of
liability as may be necessary for participation in the program.
(6) The applicant shall agree in writing to cooperate with all
elements of the treatment program designed for him or her.
Any applicant may be denied participation in the program if the
board, the program manager, or a diversion evaluation committee
determines that the applicant will not substantially benefit from
participation in the program or that the applicant's participation in
the program creates too great a risk to the public health, safety,
or welfare.
(b) A participant may be terminated from the program for any of
the following reasons:
(1) The participant has successfully completed the treatment
program.
(2) The participant has failed to comply with the treatment
program designated for him or her.
(3) The participant fails to meet any of the criteria set forth in
subdivision (a) or (c).
(4) It is determined that the participant has not substantially
benefited from participation in the program or that his or her
continued participation in the program creates too great a risk to
the public health, safety, or welfare. Whenever an applicant is
denied participation in the program or a participant is terminated
from the program for any reason other than the successful completion
of the program, and it is determined that the continued practice of
physical therapy by that individual creates too great a risk to the
public health, safety, and welfare, that fact shall be reported to
the executive officer of the board and all documents and information
pertaining to and supporting that conclusion shall be provided to the
executive officer. The matter may be referred for investigation and
disciplinary action by the board. Each physical therapist or physical
therapy assistant who requests participation in a diversion program
shall agree to cooperate with the recovery program designed for him
or her. Any failure to comply with that program may result in
termination of participation in the program.
The diversion evaluation committee shall inform each participant
in the program of the procedures followed in the program, of the
rights and responsibilities of a physical therapist or physical
therapist assistant in the program, and the possible results of
noncompliance with the program.
(c) In addition to the criteria and causes set forth in
subdivision (a), the board may set forth in its regulations
additional criteria for admission to the program or causes for
termination from the program.
SEC. 17. Section 2770.1 of the Business and Professions Code is
amended to read:
2770.1. As used in this article:
(a) "Board" means the Board of Registered Nursing.
(b) "Committee" means a diversion evaluation committee created by
this article.
(c) "Program manager" means the staff manager of the diversion
program, as designated by the executive officer of the board. The
program manager shall have background experience in dealing with
substance abuse issues.
SEC. 18. Section 2770.7 of the Business and Professions Code is
amended to read:
2770.7. (a) The board shall establish criteria for the
acceptance, denial, or termination of registered nurses in the
diversion program. Only those registered nurses who have voluntarily
requested to participate in the diversion program shall participate
in the program.
(b) A registered nurse under current investigation by the board
may request entry into the diversion program by contacting the board.
Prior to authorizing a registered nurse to enter into the diversion
program, the board may require the registered nurse under current
investigation for any violations of this chapter or any other
provision of this code to execute a statement of understanding that
states that the registered nurse understands that his or her
violations that would otherwise be the basis for discipline may still
be investigated and may be the subject of disciplinary action.
(c) If the reasons for a current investigation of a registered
nurse are based primarily on the self-administration of any
controlled substance or dangerous drug or alcohol under Section 2762,
or the illegal possession, prescription, or nonviolent procurement
of any controlled substance or dangerous drug for self-administration
that does not involve actual, direct harm to the public, the board
shall close the investigation without further action if the
registered nurse is accepted into the board's diversion program and
successfully completes the requirements of the program. If the
registered nurse withdraws or is terminated from the program by a
diversion evaluation committee, and the termination is approved by
the program manager, the investigation shall be reopened and
disciplinary action imposed, if warranted, as determined by the
board.
(d) Neither acceptance nor participation in the diversion program
shall preclude the board from investigating or continuing to
investigate, or taking disciplinary action or continuing to take
disciplinary action against, any registered nurse for any
unprofessional conduct committed before, during, or after
participation in the diversion program.
(e) All registered nurses shall sign an agreement of understanding
that the withdrawal or termination from the diversion program at a
time when the program manager or diversion evaluation committee
determines the licentiate presents a threat to the public's health
and safety shall result in the utilization by the board of diversion
treatment records in disciplinary or criminal proceedings.
(f) Any registered nurse terminated from the diversion program for
failure to comply with program requirements is subject to
disciplinary action by the board for acts committed before, during,
and after participation in the diversion program. A registered nurse
who has been under investigation by the board and has been terminated
from the diversion program by a diversion evaluation committee shall
be reported by the diversion evaluation committee to the board.
SEC. 19. Section 2770.8 of the Business and Professions Code is
amended to read:
2770.8. A committee created under this article operates under the
direction of the diversion program manager. The program manager has
the primary responsibility to review and evaluate recommendations of
the committee. Each committee shall have the following duties and
responsibilities:
(a) To evaluate those registered nurses who request participation
in the program according to the guidelines prescribed by the board,
and to make recommendations.
(b) To review and designate those treatment services to which
registered nurses in a diversion program may be referred.
(c) To receive and review information concerning a registered
nurse participating in the program.
(d) To consider in the case of each registered nurse participating
in a program whether he or she may with safety continue or resume
the practice of nursing.
(e) To call meetings as necessary to consider the requests of
registered nurses to participate in a diversion program, and to
consider reports regarding registered nurses participating in a
program.
(f) To make recommendations to the program manager regarding the
terms and conditions of the diversion agreement for each registered
nurse participating in the program, including treatment, supervision,
and monitoring requirements.
SEC. 20. Section 2770.11 of the Business and Professions Code is
amended to read:
2770.11. (a) Each registered nurse who requests participation in
a diversion program shall agree to cooperate with the rehabilitation
program designed by the committee and approved by the program
manager. Any failure to comply with the provisions of a
rehabilitation program may result in termination of the registered
nurse's participation in a program. The name and license number of a
registered nurse who is terminated for any reason, other than
successful completion, shall be reported to the board's enforcement
program.
(b) If the program manager determines that a registered nurse, who
is denied admission into the program or terminated from the program,
presents a threat to the public or his or her own health and safety,
the program manager shall report the name and license number, along
with a copy of all diversion records for that registered nurse, to
the board's enforcement program. The board may use any of the records
it receives under this subdivision in any disciplinary proceeding.
SEC. 21. Section 2770.12 of the Business and Professions Code is
amended to read:
2770.12. (a) After the committee and the program manager in their
discretion have determined that a registered nurse has successfully
completed the diversion program, all records pertaining to the
registered nurse's participation in the diversion program shall be
purged.
(b) All board and committee records and records of a proceeding
pertaining to the participation of a registered nurse in the
diversion program shall be kept confidential and are not subject to
discovery or subpoena, except as specified in subdivision (b) of
Section 2770.11 and subdivision (c).
(c) A registered nurse shall be deemed to have waived any rights
granted by any laws and regulations relating to confidentiality of
the diversion program, if he or she does any of the following:
(1) Presents information relating to any aspect of the diversion
program during any stage of the disciplinary process subsequent to
the filing of an accusation, statement of issues, or petition to
compel an examination pursuant to Article 12.5 (commencing with
Section 820) of Chapter 1. The waiver shall be limited to information
necessary to verify or refute any information disclosed by the
registered nurse.
(2) Files a lawsuit against the board relating to any aspect of
the diversion program.
(3) Claims in defense to a disciplinary action, based on a
complaint that led to the registered nurse's participation in the
diversion program, that he or she was prejudiced by the length of
time that passed between the alleged violation and the filing of the
accusation. The waiver shall be limited to information necessary to
document the length of time the registered nurse participated in the
diversion program.
SEC. 22. Section 3501 of the Business and Professions Code is
amended to read:
3501. As used in this chapter:
(a) "Board" means the Medical Board of California.
(b) "Approved program" means a program for the education of
physician assistants that has been formally approved by the
committee.
(c) "Trainee" means a person who is currently enrolled in an
approved program.
(d) "Physician assistant" means a person who meets the
requirements of this chapter and is licensed by the committee.
(e) "Supervising physician" means a physician and surgeon licensed
by the board or by the Osteopathic Medical Board of California who
supervises one or more physician assistants, who possesses a current
valid license to practice medicine, and who is not currently on
disciplinary probation for improper use of a physician assistant.
(f) "Supervision" means that a licensed physician and surgeon
oversees the activities of, and accepts responsibility for, the
medical services rendered by a physician assistant.
(g) "Committee" or "examining committee" means the Physician
Assistant Committee.
(h) "Regulations" means the rules and regulations as contained in
Chapter 13.8 (commencing with Section 1399.500) of Title 16 of the
California Code of Regulations.
(i) "Routine visual screening" means uninvasive nonpharmacological
simple testing for visual acuity, visual field defects, color
blindness, and depth perception.
(j) "Program manager" means the staff manager of the diversion
program, as designated by the executive officer of the board. The
program manager shall have background experience in dealing with
substance abuse issues.
SEC. 23. Section 3534.1 of the Business and Professions Code is
amended to read:
3534.1. The examining committee shall establish and administer a
diversion program for the rehabilitation of physician assistants
whose competency is impaired due to the abuse of drugs or alcohol.
The examining committee may contract with any other state agency or a
private organization to perform its duties under this article. The
examining committee may establish one or more diversion evaluation
committees to assist it in carrying out its duties under this
article. As used in this article, "committee" means a diversion
evaluation committee. A committee created under this article operates
under the direction of the diversion program manager, as designated
by the executive officer of the examining committee. The program
manager has the primary responsibility to review and evaluate
recommendations of the committee.
SEC. 23. Section 3534.3 of the Business and Professions Code is
amended to read:
3534.3. Each committee has the following duties and
responsibilities:
(a) To evaluate physician assistants who request participation in
the program and to make recommendations to the program manager. In
making recommendations, a committee shall consider any
recommendations from professional consultants on the admission of
applicants to the diversion program.
(b) To review and designate treatment facilities to which
physician assistants in the diversion program may be referred, and to
make recommendations to the program manager.
(c) The receipt and review of information concerning physician
assistants participating in the program.
(d) To call meetings as necessary to consider the requests of
physician assistants to participate in the diversion program, to
consider reports regarding participants in the program, and to
consider any other matters referred to it by the examining committee.
(e) To consider whether each participant in the diversion program
may with safety continue or resume the practice of medicine.
(f) To set forth in writing the terms and conditions of the
diversion agreement that is approved by the program manager for each
physician assistant participating in the program, including
treatment, supervision, and monitoring requirements.
(g) To hold a general meeting at least twice a year, which shall
be open and public, to evaluate the diversion program's progress, to
prepare reports to be submitted to the examining committee, and to
suggest proposals for changes in the diversion program.
(h) For the purposes of Division 3.6 (commencing with Section 810)
of Title 1 of the Government Code, any member of a committee shall
be considered a public employee. No examining committee or committee
member, contractor, or agent thereof, shall be liable for any civil
damage because of acts or omissions which may occur while acting in
good faith in a program established pursuant to this article.
SEC. 24. Section 3534.4 of the Business and Professions Code is
amended to read:
3534.4. Criteria for acceptance into the diversion program shall
include all of the following: (a) the applicant shall be licensed as
a physician assistant by the examining committee and shall be a
resident of California; (b) the applicant shall be found to abuse
dangerous drugs or alcoholic beverages in a manner which may affect
his or her ability to practice medicine safely or competently; (c)
the applicant shall have voluntarily requested admission to the
program or shall be accepted into the program in accordance with
terms and conditions resulting from a disciplinary action; (d) the
applicant shall agree to undertake any medical or psychiatric
examination ordered to evaluate the applicant for participation in
the program; (e) the applicant shall cooperate with the program by
providing medical information, disclosure authorizations, and
releases of liability as may be necessary for participation in the
program; and (f) the applicant shall agree in writing to cooperate
with all elements of the treatment program designed for him or her.
An applicant may be denied participation in the program if the
examining committee, the program manager, or a committee determines
that the applicant will not substantially benefit from participation
in the program or that the applicant's participation in the program
creates too great a risk to the public health, safety, or welfare.
SEC. 25. Section 3534.9 of the Business and Professions Code is
amended to read:
3534.9. If the examining committee contracts with any other
entity to carry out this section, the executive officer of the
examining committee or the program manager shall review the
activities and performance of the contractor on a biennial basis. As
part of this review, the examining committee shall review files of
participants in the program. However, the names of participants who
entered the program voluntarily shall remain confidential, except
when the review reveals misdiagnosis, case mismanagement, or
noncompliance by the participant.
SEC. 26. Section 4371 of the Business and Professions Code is
amended to read:
4371. (a) The executive officer of the board shall designate a
program manager of the pharmacists recovery program. The program
manager shall have background experience in dealing with substance
abuse issues.
(b) The program manager shall review the pharmacists recovery
program on a quarterly basis. As part of this evaluation, the program
manager shall review files of all participants in the pharmacists
recovery program.
(c) The program manager shall work with the contractor
administering the pharmacists recovery program to evaluate
participants in the program according to established guidelines and
to develop treatment contracts and evaluate participant progress in
the program.
SEC. 27. The responsibilities imposed on a licensing board by this
act shall be considered a current operating expense of that board,
and shall be paid from the fund generally designated to provide
operating expenses for that board, subject to the appropriation
provisions applicable to that fund.