Medical Board of California Releases Draft Regulations for New Physician Health and Wellness Program
Posted in Reform

In anticipation of its November Board meeting this past week, the Medical Board released its Medical Board Staff Report along with a long-awaited draft of the enabling regulations for its Physician Health and Wellness Program.

While the re-establishment of a Physician Health and Wellness Program is a positive development, the new Program is structured in a way which fails to encourage physicians with substance abuse problems to enter the Program voluntarily at an early stage of their addiction. Unlike its predecessor, the Diversion Program, which was eliminated in 2008, the new Physician Health and Wellness Program will not be confidential (16 CCR 1357.12), nor will it shield participants from disciplinary action (16 CCR 1357.11(a)(8)(a), and physician participants will not have individualized monitoring plans, instead being required to submit to the same level of biological fluid testing as all who are subject to the Uniform Standards for Substance Abusing Licensees (USSAL). (16 CCR 1357.11(d)). A physician who has early signs of a developing addiction, for example, and who self-enrolls in the Program, will not necessarily avoid the imposition of a Medical Board probation, will be required to comply with the full USSAL terms (five years of biological fluid testing, support group meetings, worksite monitor, etc.), and, if probation is imposed, will likely face such devastating consequences as loss of employment, loss of hospital privileges and loss of participating provider status with health plan payors.

Coupled with the lack of confidentiality and disciplinary avoidance, the key features of the new Program beg the question as to why a physician would ever voluntarily enroll in the program. The new Program has been designed to protect against inadequate oversight, accountability and reporting, which led to the demise of the Diversion program, rather than designed to incorporate best practices used by PHPs in other states or those recommended in the medical literature. The recommended best practices seek to encourage physicians and those who care about them and their patients to solicit intervention and treatment for physicians early in the addiction process. In addition to the costs of evaluation, treatment and monitoring, the costs of all the newly-legislated periodic audits of the Program are to be covered by the participant physicians. The sole reference to any hint of possible favorable enforcement mitigation comes in the form of a provision in the regulations that reads, “If the Board inquires as to whether a licensee is a participant in the Program after initiating an investigation on the licensee, the vendor shall provide a written response … indicating whether the licensee is a participant in the Program…” (16 CCR 1357.13(d)). This inquiry requirement would seem insufficient motivation for a physician to self-refer into a rigid, one-size-fits-all, non-confidential, non-disciplinary-avoiding program, rather than seeking confidential, professional, tailored treatment. Unfortunately, this lack of a benefit to self-referral in a Board-sanctioned program is likely to lead to impaired physicians waiting longer before seeking treatment and exposing patients to greater risks of harm.

With regard to confidentiality, the self-referred participant’s enrollment in the Program is not made public. If the Program vendor decides restrictions on the participant physician’s ability to practice need to be imposed, then the restrictions will be posted immediately on the physician’s profile on the Medical Board’s website. The draft regulations do provide that, “If the participant self-referred, and enrollment in the Program was not a condition of probation, then the public disclosure shall not contain information that the restriction or non-practice status is the result of the participant’s enrollment in the Program.” (16 CCR 1357.12). Since a physician could opt to seek treatment on their own and that would not lead to any disclosure on the Medical Board’s website, this limitation on the disclosures provides minimal incentive for a physician to self-refer into the Program.

For those hoping the progressive State of California would create a program that would encourage voluntary participation by physicians suffering from early phases of addiction—and thus rehabilitating these physicians while protecting their patients—those dreams are still stuck in the bottle.

  • Partner

    David Balfour has nearly two decades of experience representing clients in the healthcare sector on a wide range of issues including medical staff peer review proceedings, licensing proceedings, writ proceedings, State and ...

Our Health Law Ticker is a one-stop resource for everything new and noteworthy in healthcare law.  We cover recent developments in healthcare legislation, healthcare reform, Medicare/Medicaid, managed care, litigation, regulatory compliance, HIPAA, privacy, peer review, medical staffs and general business operations for healthcare companies and licensed healthcare professionals.

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