The Public Calls on Legislature to Maintain Existing Law Protecting Consumers 

A complete reversal by the Medical Board of California regarding disclosure and accountability in a substance abuse program for physicians left the public questioning the medical board’s commitment to consumer protection.

The Medical Board voted at a recent meeting to seek legislation creating more secrecy for doctors in substance abuse treatment. The vote reversed previous positions of the board and abandoned regulations that had been eight years in the making. The legislation the board seeks will circumvent current law requiring doctors who violate substance abuse programs be reported to the medical board and giving the medical board tools to discipline them.

The vote undercuts two existing consumer protection laws. The first, the Uniform Standards for Substance Abusing Health Care Professionals (SB 1441), was signed into law in 2008 to ensure that doctors in substance abuse treatment faced consequences for violating the program, including a report to the medical board for potential discipline.  

The second law (SB 1177) was passed in 2016 to create a state-sponsored program for substance abusing doctors. Patient advocates fought to make sure the legislation would not allow doctors to hide relapses or other violations of treatment programs, by requiring it follow the requirements of the Uniform Standards.

And while the regulations for a physician substance abuse program may have been eight years in the making, the issue of accountability surrounding physician substance abuse dates back to 2007.

That’s when advocates convinced the Medical Board of California that its prior program for substance abusing physicians, called the “Diversion Program”, should be shut down for putting Californians at risk.  A report by a legislatively appointed Enforcement Monitor revealed that participants in the Diversion Program were not drug-tested as often as they should have been, were not terminated from the Program after repeated violations, and that no standards existed to guide the functioning of “worksite monitors” charged with overseeing doctors practicing medicine while in the Program. Even though the Board promised to address the problems with the Program, the deficiencies continued for years until it was finally terminated in 2008. The impact of advocates coming forward sharing our family’s losses and life-long harm, in conjunction with reported issues with the Program, moved the Board to take action.  However, lobbyists for doctors attempted to reinstate the substance abuse program the following year. A public hearing on Diversion was called for in early 2008.   Although I was not on the agenda, I was given the opportunity to address the Senate Business, Professions & Economic Development led committee hearing. Despite claims that no patient had ever been harmed by a substance abusing physician, I was there to talk about Californians who had died. I shared the story of my husband-to-be Lloyd Monserratt, whose life was tragically cut short by a surgeon with a history of arrest for felony possession of crack cocaine. I emphasized the importance of public safety and the need for transparency across all health care-related regulatory boards. It was one of those rare moments when advocacy reverses the direction of a hearing, and the outcome greatly benefits the public. As a result of the public hearing, an audit of all diversion programs in the state was ordered, and the legislation SB 1441 was introduced to establish Uniform Standards for every health care-related regulatory board.

At that time, California was the first state in the country to terminate its program for substance abusing physicians. This was the beginning of what other state boards refer to as the California story.

The failure of the prior program is why SB 1177 required any new substance abuse program to follow the uniform standards, so doctors in treatment would not place patients at risk.

For the eight years since SB 1177 was approved, the medical board has worked on regulations to implement it. Those regulations were awaiting final approval when the board reversed course and voted to eliminate them entirely in favor of a new bill. The new bill the board is seeking would weaken current law by:

• Allowing doctors to fail a drug test and not have to report it to the medical board.  
• Eliminating a requirement for a minimum number of random drug tests by the medical board for substance abusing physicians 
• Ending the board’s right to issue a cease practice order for a doctor while the board conducts a clinical diagnostic evaluation of the physician.

Advocates were willing to support a substance abuse program at the Board as long as public reporting and doctor testing standards to protect patient safety were followed.  The medical board gave up its authority to discipline dangerous doctors and threw consumer protection out the window with its reversal on doctor drug and alcohol testing and transparency.

Since 2008, California has not had a confidential program for substance abusing doctors in place.  Without a program, substance abusing physicians caught practicing while impaired are reported to the medical board.  The medical board is required to review and investigate the case, which eventually becomes public information available to consumers if the physician was disciplined.  

One such case occurred in San Diego.  According to medical board public records, anesthesiologist Dr. Anna Bowling was caught under the influence while on duty in the hospital. Witnesses saw her leaving an operating room and later staggering walking through the hospital.  Because the Uniform Standards are in place and no confidential physician substance abuse program exists, the physician was reported to the medical board. The medical board investigated the case and Dr. Bowling was placed on 7 years’ probation.  

The Uniform Standards increase transparency for the public.  The law has required the board to take action when substance abusing doctors have come to their attention.  The outcome of the review and investigation of these doctors’ cases has resulted in probation for many of these licensees which is outlined in public documents.  Prior to 2008, these cases did not have to be reported to the board. This lack of transparency left patients at risk.

The Medical Board of California announced that they will bring the issue back to a Quarterly Board meeting at the end of the year with a new legislative plan.

BACKGROUND: 

The Uniform Standards for Substance Abusing physicians consists of 18 standards that were established and approved by executive directors from all California health-related regulatory boards.  The Uniform Standards provide the medical board and a state sponsored substance abuse program with requirements from a clinical diagnostic evaluation of the doctor to determine if he/she has a substance abuse problem, a testing schedule of 52-104 biological fluid tests for the first year, and up to and including giving the medical board the tool to issue a cease practice order while the doctor undergoes the diagnostic evaluation.

The Uniform Standards were created to ensure that a future state sponsored substance abuse program would not fail physician participants and would protect California patients.  They can be found here.

Consumer Watchdog’s letter in opposition to SB 1177 can be found here.

The Enforcement Monitor’s Report can be found here.

Lloyd Monserratt’s story can be found here.

Michele Monserratt-Ramos’ testimony regarding medical board transparency can be found here.

Michele Monserratt-Ramos’ testimony regarding substance abuse program history can be found here.