By Paul Sisson, SAN DIEGO UNION-TRIBUNE
Consumer advocacy groups are opposing a bill that would create a confidential treatment program for physicians struggling with substance use and mental health disorders, rejecting claims from medical professional organizations that it would help prevent patient harm.
Despite opposition, Assembly Bill 408, legislation sponsored by the Medical Board of California, passed its second committee hearing Tuesday and is headed for a hearing before the Assembly’s Appropriations Committee, tentatively scheduled for May 14.
The bill calls for the board to hire an outside nonprofit to create a “Physician Health and Wellness Program,” which would enroll doctors and other allied medical professionals that the body regulates to receive treatment for substance use disorders and mental health conditions that might affect their ability to practice medicine. While all of the board’s disciplinary actions, such as suspending or revoking a medical license, are public, the proposed wellness program’s work, including who is enrolled, would be “exempt from public disclosure.”
“The medical board has not offered a formal wellness program for its licensees in nearly 18 years when it was concluded that the board’s prior diversion program was not being efficiently overseen and administered,” said Assemblymember Marc Berman, D-Menlo Park, who introduced AB 408 on behalf of the medical board, during Tuesday’s hearing. “Much has changed in 18 years, especially in our efforts to address those in our communities who struggle with substance use.
“New leadership at the medical board has demonstrated their commitment to establishing a successful program, which is why they have spent the last two years consulting with experts across the country to develop language that is informed by research and proven through implementation.”
Alicia Sanchez, chief strategy officer of the California Medical Association, said that a “fear of enforcement” has affected California physicians struggling with substance use problems.
“While certain types of conditions carry stigma regardless of who you are, physicians carry the additional fear that seeking help, especially for mental and behavioral health conditions, will result in limits on their license and thus their ability to practice medicine,” Sanchez said. “This fear of enforcement for seeking care can have the perverse effect of discouraging physicians from getting care early, and this can result in preventable impairment that risks patient harm.”
Those who support the bill note that California is among only three states in the United States with medical boards that do not sponsor treatment programs.
A long list of other professional medical organizations has lined up to support AB 408, including 10 professional medical organizations from the California Society of Anesthesiologists to the California Dental Association. However, a handful of consumer protection organizations, including the nonprofit Consumer Watchdog, are vehemently opposed.
In a statement, the group says it must oppose AB 408 because “it will put patients at risk of harm at the hands of doctors abusing drugs or alcohol.”
The group cites the medical board’s former “diversion” program, which was eliminated in 2007 after several audits found that it was poorly enforced and ineffectively monitored by board staff. In some cases, for example, doctors in the program were able to circumvent testing by rescheduling appointments.
The organization cites the case of Dr. Anna M. Bowling, a San Diego anesthesiologist who recently saw the medical board move to revoke her probation after she “failed to provide a biological fluid sample when selected to test on multiple dates.” Probation and regular drug testing were ordered, a medical board record states, after a 2022 incident in which the doctor’s colleagues allegedly observed her behaving erratically at Scripps Memorial Hospital Encinitas, including walking into walls after she “self-administered propofol intravenously while in the physicians’ on-call suite.”
Consumer Watchdog says that there would have been less transparency if AB 408 were approved and the doctor had access to a treatment program run by the medical board. Berman vehemently disagrees.
During Tuesday’s hearing, he said that there is a key change that will make the proposed new program much different from the old one. While the old diversion program allowed doctors to avoid discipline by agreeing to treatment and monitoring of drug tests for five years, the new version would not go so far.
“To be very clear, nothing in this bill changes what’s required when a doctor enters the program because they harmed a patient or committed malpractice,” Berman said. “The confidentiality allowed in this bill only applies to doctors who enter the program voluntarily, and that confidentiality is necessary in order to encourage them to seek help before their condition impacts their practice …
“We want doctors to go into the program before they harm a patient.”
But some see little proof that AB 408 would actually reduce the number of patients who are harmed by doctors under the influence.
Marcus Friedman, administrative director of the Consumer Protection Policy Center at the University of San Diego, said research shows that complaints of patient harm by impaired doctors do not differ appreciably in California when compared to those in states with treatment programs. When compared to New York, which already has a physician wellness program, the center’s analysis found that New York was actually monitoring more doctors for substance use violations than California in the most recent monitoring periods for 2023 and 2024 even though California is home to about 13% more doctors. Researchers also found that a very small group of doctors actually participates in the wellness programs in New York and Washington.
“We’re talking about far less than 1% of the total licensee population when it comes to this type of program,” Friedman said.
The need for confidential treatment, he added, is one that is already being met.
“Doctors that do have substance use disorder, they already have various different types of treatment available that they can voluntarily go to within California,” he said. “In fact, if they do voluntarily go into those programs, the medical board doesn’t know, so it is confidential from the medical board itself.
“There are no reporting requirements for existing treatment centers.”
Friedman said that the center, which helped conduct the initial medical board audits under former director Julianne Fellmeth in 2004 that led to the board suspending its diversion program in 2007, said that the organization believes that the medical board’s focus is better put on reforming its doctor discipline process, which can take years to complete after a complaint is filed.
Aaron Bone, chief of legislation and public affairs at the medical board, pushed back against the notion that the board does not need its own program. Citing a 2024 report on Washington’s program that showed high levels of support from participants, he also said that the medical board has been advised that the current number of California doctors on substance use probation —141 at latest count — is lower than it should be given the total number of doctors living and working in the Golden State.
There also could be, he added, an enforcement benefit associated with the medical board supporting a treatment program of its own.
“Critically, this program would be required to report non-compliant licensees to the Board so that we can discipline them, when appropriate,” Bone said. “Private programs offering similar services are not required to make such reports to the board.
“Right now, we won’t know if a physician is impaired until a complaint is filed, which may not happen until a patient is harmed or the licensee has been arrested for criminal behavior.”
But why would doctors enter a public program knowing that it could refer them to the medical board if private programs would not? A government-backed program that rigorously follows known best practices, Bone said in an email, could carry more weight with prospective employers, and it could also be more affordable than private options.
“The Board has received comments that the cost of seeking treatment can be a barrier even for physicians,” Bone said. “A program that meets best practices may inspire financial support from a wide variety of sources with the shared goal of consumer protection, which could then allow the program to offer financial assistance to participants to help cover a portion of the costs they face.”
According to the National Center for Drug Abuse Statistics, the national average cost of drug rehabilitation therapy is $13,475 per person.
