Existing law, the Medical Practice Act, provides for the licensure and regulation of physicians and surgeons and licensed midwives by the Medical Board of California. A violation of the act is a crime. Existing law authorizes the board to establish a Physician and Surgeon Health and Wellness Program to support a physician and surgeon in their rehabilitation from substance abuse to ensure the physician and surgeon remains able to practice medicine in a manner that will not endanger the public health and safety and that will maintain the integrity of the medical profession. Existing law requires the board to contract with a third party for the programs administration in accordance with specified provisions of the Public Contract Code. Existing law provides that participation in the program shall not be a defense to any disciplinary action that may be taken by the board. Existing law requires the program to comply with the Uniform Standards Regarding Substance-Abusing Healing Arts Licensees adopted by the Substance Abuse Coordination Committee of the Department of Consumer Affairs. Existing law establishes the Physician and Surgeon Health and Wellness Program Account in the Contingent Fund of the Medical Board of California for the support of the program.

This bill would revise and recast those provisions and would instead authorize the board to establish a Physician Health and Wellness Program to support, treat, monitor, and rehabilitate physicians and surgeons and other professionals licensed by the board with impairing physical and mental health conditions that may impact their ability to practice their profession in a reasonably safe, competent, and professional manner. The bill would require the administering entity to be a nonprofit entity and would require the contract with the administering entity to include procedures on specified topics. The bill would exempt the program from the Uniform Standards Regarding Substance-Abusing Healing Arts Licensees. The bill would exempt program records relating to current or former program participants from disclosure under the California Public Records Act, except as specified. The bill would authorize the board to establish advisory committees to assist in carrying out the duties of the administering entity, and would establish duties and responsibilities authorized to be performed by a committee. The bill would rename the Physician and Surgeon Health and Wellness Program Account as the Physician Health and Wellness Program Account, and would authorize the board to seek and use grant funds and gifts from public or private sources to pay any cost associated with the program. The bill would require the board to annually report to the Legislature and make available to the public the amount and source of funds. The bill would require a licensee to report a license to the administering entity or the board if they believe the licensee is impaired. By expanding the scope of a crime under the Medical Practice Act, the bill would impose a state-mandated local program. The bill would make a person who reports information or takes action in connection with the bills provisions immune from civil liability for reporting information or taking the action, except as specified. The bill would make the program inapplicable to the Osteopathic Medical Board of California.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, the Medical Practice Act, provides for the licensure and regulation of physicians and surgeons and licensed midwives by the Medical Board of California. A violation of the act is a crime. Existing law authorizes the board to establish a Physician and Surgeon Health and Wellness Program to support a physician and surgeon in their rehabilitation from substance abuse to ensure the physician and surgeon remains able to practice medicine in a manner that will not endanger the public health and safety and that will maintain the integrity of the medical profession. Existing law requires the board to contract with a third party for the programs administration in accordance with specified provisions of the Public Contract Code. Existing law provides that participation in the program shall not be a defense to any disciplinary action that may be taken by the board. Existing law requires the program to comply with the Uniform Standards Regarding Substance-Abusing Healing Arts Licensees adopted by the Substance Abuse Coordination Committee of the Department of Consumer Affairs. Existing law establishes the Physician and Surgeon Health and Wellness Program Account in the Contingent Fund of the Medical Board of California for the support of the program.

This bill would revise and recast those provisions and would instead authorize the board to establish a Physician Health and Wellness Program to support, treat, monitor, and rehabilitate physicians and surgeons and other professionals licensed by the board with impairing physical and mental health conditions that may impact their ability to practice their profession in a reasonably safe, competent, and professional manner. The bill would require the administering entity to be a nonprofit entity and would require the contract with the administering entity to include procedures on specified topics. The bill would exempt the program from the Uniform Standards Regarding Substance-Abusing Healing Arts Licensees. The bill would exempt program records relating to program participants from disclosure under the California Public Records Act, except as specified. The bill would authorize the board to establish advisory committees to assist in carrying out the duties of the administering entity, and would establish duties and responsibilities authorized to be performed by a committee. The bill would rename the Physician and Surgeon Health and Wellness Program Account as the Physician Health and Wellness Program Account, and would authorize the board to seek and use grant funds and gifts from public or private sources to pay any cost associated with the program. The bill would require the board to annually report to the Legislature and make available to the public the amount and source of funds. The bill would require a licensee to report a license to the administering entity or the board if they believe the licensee is impaired. By expanding the scope of a crime under the Medical Practice Act, the bill would impose a state-mandated local program. The bill would make a person who, in good faith, who reports information or takes action in connection with the bills provisions immune from civil liability for reporting information or taking the action. action, except as specified. The bill would make the program inapplicable to the Osteopathic Medical Board of California.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, the Medical Practice Act, establishes the Medical Board of California for the licensing, regulation, and discipline of physicians and surgeons.

This bill would state the intent of the Legislature to enact legislation to revise the authority of the Medical Board of California to establish a physician health and wellness program.

ASSEMBLY THIRD READING

ATR Bill Id:AB 408

Author:(Berman)

As Amended Ver:April 21, 2025

Majority vote

SUMMARY

Revises the authority of the Medical Board of California (MBC) to establish a Physician Health and Wellness Program to enable the program to align with national best practices for helping physicians with substance use disorders and other conditions receive treatment so they can continue practicing safely.

Major Provisions

1. Repeals current law authorizing the MBC to establish a Physician and Surgeon Health and Wellness Program for physicians and surgeons with substance abuse issues.
2. Reestablishes the MBC′s authority to establish a Physician and Surgeon Health and Wellness Program and broadens eligibility for participation in the program to include not only physicians and surgeons but also allied health care professionals licensed by the MBC, applicants, prospective applicants, trainees, and students.
3. Broadens the scope of the Physician and Surgeon Health and Wellness Program to provide assistance for individuals struggling with any impairing or potentially impairing physical or mental health conditions, including but not limited to substance use disorders.
4. Authorizes the MBC to establish one or more advisory committees to assist it in carrying out its duties related to the Physician Health and Wellness Program, as specified.
5. Provides that a Physician and Surgeon Health and Wellness Program established by the MBC shall do all of the following:
6. Educate the public, licensees, applicants, prospective applicants, trainees, students, health facilities, medical groups, health care service plans, health insurers, and other relevant organizations on specified topics relating to the program.
7. Enter into relationships supportive of the program with professionals experienced in working with health care providers to provide education, evaluation, monitoring, or treatment services.
8. Receive and assess reports of suspected impairment from any source.
9. Intervene in cases of verified impairment or suspected impairment, as well as in cases where the individual has a condition that could lead to impairment if left untreated.
10. Upon reasonable cause, refer participants for evaluation, treatment, monitoring, or other appropriate services.
11. Provide consistent and regular monitoring, care management support, or other appropriate services for program participants.
12. Advocate on behalf of participants, with their consent, to the MBC to allow them to participate in the program as an alternative to disciplinary action, when appropriate.
13. Offer guidance on participants′ fitness for duty with current or potential workplaces, when appropriate.
14. Perform other services as agreed between the program and the MBC.
15. Exempts voluntary participants from the requirements of the Uniform Standards Regarding Substance-Abusing Healing Arts Licensees.
16. Requires participants on probation to comply with the terms of that probation, including a probation order imposing the Uniform Standards, and requires the Physician Health and Wellness Program to provide any required evaluations, treatment, monitoring, and reports to the MBC consistent with the participant′s order of probation.
17. Authorizes the MBC to refer a licensee to the Physician Health and Wellness Program in lieu of disciplinary action if the MBC determines that the unprofessional conduct may be the result of an impairing or potentially impairing condition; however, prohibits referral to the program in lieu of disciplinary action if the unprofessional conduct involves allegations of patient or client harm or sexual misconduct with a patient, client, or any other person.
18. Requires the MBC to obtain the consent of the licensee prior to referring the licensee to the Physician Health and Wellness Program in lieu of disciplinary action, and provides that if the licensee does not consent or does not successfully complete the program, the MBC may take appropriate disciplinary action.
19. Authorizes the MBC to enter into a multiyear contract with an administering entity and places additional requirements for the administration of the Physician Health and Wellness Program.

COMMENTS

Medical Board of California. The MBC is primarily responsible for licensing and regulating physicians and surgeons, whose certificates authorize the plenary practice of all recognized fields of medicine. The MBC also has jurisdiction over special program registrants and organizations and special faculty permits, which allow those who are not MBC licensees but who meet certain licensure exemption criteria to perform duties in specified settings. The MBC also has authority over licensed midwives, medical assistants, and registered polysomnographic professionals. The MBC additionally approves accreditation agencies that accredit outpatient surgery settings and issues fictitious name permits to physicians practicing under a name other than their own.

Efforts to Address Physician Wellness and Burnout. Discussions have long persisted around how to support the mental and physical well-being of California′s frontline health workers, including physicians. National studies have concluded that a significant percentage of physicians meet the diagnostic criteria for substance abuse or dependence compared to the general population. The increased prevalence of substance use disorders among physicians has been associated with the high-stress work environment of medical practice, access to prescription medications, and cultural factors that stigmatize mental health issues and discourage seeking care.

During the MBC′s most recent sunset review, the background paper published by the Assembly Committee on Business and Professions and the Senate Committee on Business, Professions, and Economic Development raised the following issue: ″Under ordinary circumstances, frontline healthcare providers and first responders often face difficult situations that are mentally and emotionally challenging. Are there new issues arising from, or ongoing issues being worsened by, the extreme conditions of the COVID-19 pandemic?″

In recognition of these concerns, the MBC′s most recent sunset bill made changes to statute authorizing the MBC to require physicians to respond to a questionnaire intended to confirm that the physician ″currently has no mental, physical, emotional, or behavioral disorder that would impair the physician′s ability to practice medicine safely.″ Further changes were made in 2024 to further restrict the MBC′s authority to require applicants and licensees to self-disclose conditions or disorders that do not impair their ability to practice medicine safely, including disorders for which they are receiving appropriate treatment.

Physician Health and Wellness Program. One effective mechanism for addressing substance use disorders within the medical profession is the use of programs for identifying, treating, and monitoring practitioners struggling with addiction or other potential impairments. The first such program in California was established in 1979 through legislation co-sponsored by the MBC (then known as the Board of Medical Quality Assurance) and the California Medical Association. The MBC′s original Diversion Program was intended to facilitate the rehabilitation of physicians suffering from drug or alcohol abuse while allowing them to continue practicing medicine under a treatment program, which could be customized to include specific safeguards such as practice monitors and regular drug and alcohol testing. Physicians who failed to comply with their individual treatment plan would face license suspension or would be otherwise referred to the MBC′s enforcement program for discipline.

Concerns were raised regarding the MBC′s Diversion Program shortly following its implementation, with specific criticisms published in reports by the California State Auditor and during the Legislature′s sunset review of the MBC. In November 2004, an Enforcement Monitor appointed pursuant to the MBC′s sunset bill submitted their initial report with a chapter specifically focused on the Diversion Program. The report whether the MBC′s administration of its Diversion Program was consistent with its statutory mandate to prioritize protection of the public. The Enforcement Monitor′s final report in 2005 acknowledged that ″the Board′s Diversion Program has undergone a dramatic change in management and direction with the stated intent of ′reconstructing′ the program to better protect the public, and significant operational improvements have been implemented despite continuing resource shortages.″ However, the Enforcement Monitor continued to raise ″threshold issues″ about whether the Diversion Program should be continued and whether it should be administered by the MBC, rather than through a contract with a third party.

In 2005, the MBC′s sunset bill was amended to require an additional audit of the MBC′s Diversion Program, with the program scheduled to sunset on January 1, 2009 unless extended. In June 2007, the California State Auditor released its report, which found that many of the Enforcement Monitor′s recommendations had not been implemented and that the program still struggled to sufficiently monitor licensee participation and take action for violations of a participant′s treatment plan. In response to this final audit, the MBC voted at its July 2007 meeting to abolish its Diversion Program, which was formally repealed on July 1, 2008.

Following the dissolution of the MBC′s Diversion Program in 2008, the Legislature enacted Senate Bill 1441 (Ridley-Thomas), Chapter 548, Statutes of 2008, sponsored by the Center for Public Interest Law, whose Administrative Director had served as the MBC′s Enforcement Monitor. Senate Bill 1441 established the Substance Abuse Coordination Committee within the DCA to formulate ″consistent and uniform standards and best practices in dealing with substance-abusing licensees.″ This included 16 specific standards each healing arts board would be required to use in dealing with substance-abusing licensees, with or without a formal diversion program.

The intent of Senate Bill 1441 was to standardize programs seeking to rehabilitate health care licensees struggling with substance use problems across all of DCA′s healing arts boards. The bill was intended to ″continue a measure of self-governance,″ with committee analysis noting that ″the standards for dealing with substance-abusing licensees determined by the commission set a floor, and boards are permitted to establish regulations above these levels.″ However, Senate Bill 1441 required any initiative by a healing arts board resembling the creation of a diversion program to comply with each of the requirements contained in the Uniform Standards Regarding Substance-Abusing Healing Arts Licensees.

After several failed attempts to reestablish a program within the MBC, in 2016, the California Medical Association sponsored Senate Bill 1177 (Galgiani), Chapter 591, Statutes of 2016, to authorize the MBC to establish a Physician Health and Wellness Program for the early identification of, and appropriate interventions to support a physician and surgeon in their rehabilitation from substance abuse. The MBC had stated during its October 2015 meeting that it believed any program for physicians would have to comply with the DCA′s Uniform Standards Regarding Substance-Abusing Healing Arts Licensees, and the bill specifically required the program to comply with those requirements. The bill was signed into law by Governor Brown, finally recodifying the authority for the MBC to establish a program for substance abusing physicians.

The MBC began its formal rulemaking process to implement Senate Bill 1177 shortly after Senate Bill 1177 was signed, voting in October 2016 to hold interested parties meetings in 2017 to obtain input on potential regulatory language. In October 2017, the MBC voted to move forward with noticing proposed regulations for a 45-day comment period and hearing; however, while this was underway, the Substance Abuse Coordination Committee within the DCA announced that it was meeting to make changes to the Uniform Standards, resulting in a pause in the MBC′s rulemaking. In November 2019, the MBC voted to move forward with a modified regulatory proposal, which was submitted to the DCA; two years later, the MBC voted once again to move forward with another revised version of its regulations, which were formally noticed for public comment in September 2023.

After receiving public comments through November 2023, the MBC reviewed what it has described as ″thoughtful feedback from stakeholders and experts who raised valid concerns about the effectiveness of our proposal and its potential unintended consequences.″ Specifically, the MBC determined that the Physician Health and Wellness Program authorized by Senate Bill 1177 would not align with national best practices for encouraging participation and achieving successful outcomes. One specific concern was that Senate Bill 1177 would still require the MBC′s program to comply with the Uniform Standards, which would require the board to disclose information to the public on licensees participating in the program ″regardless of whether the licensee is a self-referral or a board referral.″ Concerns were raised that this would only serve to further stigmatize practitioners who seek care for disorders and disincentivize those who would otherwise consider voluntarily entering a program.

In response to these concerns, the MBC voted to withdraw its proposed regulations and instead move forward with legislation to revise its authority to establish a Physician Health and Wellness Program to allow it to implement a program that aligns with best practices. This bill, sponsored by the MBC, would make several important changes to the MBC′s existing authority. First, it would provide that the Uniform Standards would not be mandated on any individual who is participating in the Physician Health and Wellness Program voluntarily. This would allow for that participation to occur confidentially, just as it would be were the individual to participate in any other treatment program not currently affiliated with a licensing board.

This bill would also expand eligibility to participate in the Physician Health and Wellness Program to include not just physicians, but also other professionals overseen by the MBC, such as licensed midwives or registered polysomnographic professionals, as well as license applicants and medical students. Under this bill, the program would also be broadened to include any impairing or potentially impairing physical or mental health conditions, which would include substance use disorders but could also include other conditions commonly associated with physician stress and burnout. The bill would also streamline the MBC′s ability to enter into multi-year contracts with a program administrator, authorize the creation of advisory committees within the MBC, and provide for mandatory reporting by licensees of colleagues believed to have impairing conditions.

Nothing in the bill is intended to change the process for licensees who are required enter into the program as a form of discipline. Further, this bill would not change the requirements for any licensee who is found to have engaged in unprofessional conduct involving allegations of patient or client harm or sexual misconduct with a patient, client, or any other person. While the MBC already has authority to establish a Physician Health and Wellness Program, this bill would arguably enable it to establish a more successful program that can help more individuals receive help with a broader range of disorders while continuing to safely practice medicine.

According to the Author

″When our physicians struggle with substance use disorders, it is in the best interest of both patients and physicians to support them in seeking out help. AB 408 builds off California′s longstanding efforts to destigmatize seeking treatment for substance use disorders. This bill is fundamentally about patient safety. Today, physicians struggling with substance use disorders can feel pressure to hide their condition and often never get the help they need. The creation of this program will help healthcare providers get the care they need, which will better protect patients in the end.″

Arguments in Support

The Medical Board of California (MBC) is sponsoring this bill. According to the MBC: ″Whether due to a substance use disorder, or another mental or physical health condition, impaired healthcare providers can cause devastating harm to the public. AB 408 authorizes the Board to establish a physician health and wellness program (program) that will coordinate treatment and monitoring services for the Board′s current and future licensees consistent with national best practices so that they can get the help they need to stay healthy and provide the high-quality care that patients deserve. This proposal also includes reporting requirements so that the program and/or Board is aware of its licensees who are unsafe to practice, authorizes program quality and compliance evaluations, and requires public disclosure of various program statistics.″

Arguments in Opposition

The Consumer Protection Policy Center (CPPC) opposes this bill, writing: ″CPPC urges the Legislature to reject the proposed PHWP legislation and instead encourage MBC to focus on matters that truly and appropriately concern the legitimate regulatory functions of MBC. When MBC seeks to create a rehabilitation program, it is the Board′s burden to ensure that patients are protected above all else. This Board previously rejected similar PHWP proposal in the form of rulemaking and there are identical similarities to this new proposed PHWP legislation. There is no need for MBC to be concerned in physician and doctor rehabilitation in light of the Board′s enforcement obligations.″

FISCAL COMMENTS

According to the Assembly Committee on Appropriations, no state costs.

VOTES

ASM BUSINESS AND PROFESSIONS: 16-0-2

YES: Berman, Flora, Ahrens, Alanis, Bauer-Kahan, Caloza, Chen, Elhawary, Hadwick, Haney, Irwin, Jackson, Krell, Lowenthal, Nguyen, Pellerin

ABS, ABST OR NV: Bains, Macedo

ASM JUDICIARY: 10-0-2

YES: Kalra, Dixon, Bryan, Connolly, Harabedian, Pacheco, Papan, Sanchez, Stefani, Zbur

ABS, ABST OR NV: Bauer-Kahan, Macedo

ASM APPROPRIATIONS: 14-1-0

YES: Wicks, Sanchez, Arambula, Calderon, Caloza, Dixon, Elhawary, Fong, Mark González, Hart, Pacheco, Pellerin, Solache, Ta

NO: Tangipa

UPDATED

VERSION: April 21, 2025

CONSULTANT: Robert Sumner / B. & P. / (916) 319-3301 FN: 0000471

Date of Hearing: May 21, 2025

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 408

Author:(Berman) – As Amended Ver:April 21, 2025

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill revises the authority of the Medical Board of California (MBC) to establish a physician health and wellness program (Program) to support, treat, monitor, and rehabilitate physicians with substance use disorders (SUDs). The bill requires the Program be administered by a nonprofit entity with expertise in mental health, including SUDs.

Specifically, this bill:

1. Repeals existing law authorizing the MBC to establish a Program for physicians with SUDs.
2. Reestablishes the MBC’s authority to establish a Program and broadens eligibility for participation in the Program to include allied health care professionals licensed by the MBC, applicants, prospective applicants, trainees, and students.
3. Broadens the scope of the Program to provide assistance for individuals struggling with any impairing or potentially impairing physical or mental health conditions, including SUDs.
4. Provides that Program records relating to participants are not subject to discovery by subpoena or admissible as evidence, except as specified.
5. Provides that, a person who, in good faith, reports information or takes action in connection with the provisions of this bill is immune from civil liability as authorized by law, and that the immunity from civil liability must be liberally construed. Specifies persons entitled to immunity and situations where an individual is not immune from liability.
6. Clarifies that item 5, above, does not apply when a person can be proven to have made a false report and either knew that the report was false, or made the report with reckless disregard of the truth or falsity of the report, and that such a person is liable for any damages caused to the subject of the report.
7. Requires licensees of the MBC to report to the administering entity or the MBC if they, in their good faith judgment, believe that another licensee may be impaired. Exempts Program staff and agents from this reporting mandate when the licensee is compliant with Program requirements and does not pose a risk to patient safety.
8. Prohibits the administering entity or MBC from disclosing the name of the referring individual to the referred licensee under any circumstances, except with the express written permission of the referring individual, or if otherwise required by law.

FISCAL EFFECT:

No state costs.

COMMENTS:

National studies have concluded that a higher percentage of physicians meet the diagnostic criteria for substance abuse or dependence compared to the general population. The prevalence of substance use disorders among physicians has been associated with the high-stress work environment of medical practice, access to prescription medications, and cultural factors that stigmatize mental health issues and discourage seeking care.

One mechanism for addressing SUDs within the medical profession is the use of programs for identifying, treating, and monitoring practitioners struggling with addiction or other potential impairments. The first such program in California was established in 1979 through legislation co-sponsored by MBC (then known as the Board of Medical Quality Assurance) and the California Medical Association. The MBC’s original diversion program was to facilitate the rehabilitation of physicians suffering from drug or alcohol abuse while allowing them to continue practicing medicine under a treatment program, which could be customized to include specific safeguards such as practice monitors and regular drug and alcohol testing. Physicians who failed to comply with their individual treatment plan would face license suspension or would be otherwise referred to the MBC’s enforcement program for discipline.

In June 2007, the California State Auditor reported the Program struggled to sufficiently monitor licensee participation and take action for violations of a participant’s treatment plan. Since then, MBC and the Legislature have continued efforts to address the problem. One specific concern is requiring MBC’s Program to comply with the Uniform Standards Regarding Substance-Abusing Healing Arts Licensees, which would require MBC to disclose information to the public on licensees participating in the Program “regardless of whether the licensee is a self-referral or [an MBC] referral.” Arguably, this would further stigmatize practitioners who seek care for SUDs and disincentivize those who would otherwise consider voluntarily entering a program. MBC voted to move forward with legislation – this bill – to revise its authority to implement a program that aligns with best practices.

According to the author:

When our physicians struggle with [SUDs], it is in the best interest of both patients and physicians to support them in seeking out help. AB 408 builds off California’s longstanding efforts to destigmatize seeking treatment for [SUDs]. This bill is fundamentally about patient safety. Today, physicians struggling with [SUDs] can feel pressure to hide their condition and often never get the help they need. The creation of this program will help healthcare providers get the care they need, which will better protect patients in the end.

Analysis Prepared by: Allegra Kim / APPR. / (916) 319-2081

Date of Hearing: April 29, 2025

ASSEMBLY COMMITTEE ON JUDICIARY

Ash Kalra, Chair

ABPCA Bill Id:AB 408

Author:(Berman) – As Amended Ver:April 21, 2025

SUBJECT: Physician Health and Wellness Program

KEY ISSUE: should records maintained by the medical board of california’s Physician Health and Wellness Program (which is recast by this bill to align with national best practices for helping physicians and other licensed health care providers with substance use disorders continue to practice) be exempt from public disclosure, except as specified; and should a licensee who reports information about another licensee’s substance use to the board be immune from civil liability for doing so?

SYNOPSIS

National studies show that a significant percentage of physicians meet the diagnostic criteria for substance use disorder (SUD) or dependence compared to the general population. The increased prevalence of substance use disorders among physicians has been associated with the high-stress work environment of medical practice, access to prescription medications, and cultural factors that stigmatize mental health issues and discourage seeking care. Despite the crucial need for California to have an effective SUD treatment and diversion program that will allow physicians to get the treatment they need, but still protect the public from impaired physicians, the state and the California Medical Board (MBC) has struggled for decades to establish such a program.

This bill attempts to do just that. Sponsored by the MBC, it makes a number of changes to existing law that is designed and intended to help licensed health care professionals with substance use disorders continue to safely practice medicine. It does the following: (1) revises the Physician Health and Wellness Program (Program) and the authority of the MBC in relation to the Program in order to align with national best practices; (2) makes records regarding the Program exempt from public disclosure, except as specified; and (3) provides immunity from civil liability for the reporting of misconduct of a physician to the MBC or Program. The first and most significant part of the bill—repealing and recasting the Program—is in the jurisdiction of the Assembly Committee on Business & Professions, which recently heard and approved the bill by a vote of 16-0 (with two members not voting). Therefore, this analysis focuses on the second and third issues, regarding public records and immunity for whistleblowers, topics that are in this Committee’s jurisdiction.

The bill is supported by a large number of organizations representing physicians and other licensed health care professionals. It is opposed by a number of consumer groups, advocates for good governance and, unless amended, by the Consumer Attorneys of California. These groups argue that the Program is not necessary; could endanger the safety of the public; and perpetuate antitrust concerns that are fundamental to the nature of the MBC. These issues – and amendments that the author may wish to consider as the bill moves forward – are explained in the analysis.

SUMMARY: Revises, in order to align with national best practices, the authority of the Medical Board of California (MBC) to establish a Physician Health and Wellness Program that is intended to help physicians and other licensed health care professionals with substance use disorders continue to safely practice within the scope of their license; makes records regarding the program exempt from public disclosure, except as specified; and provides immunity from civil liability for reporting information about a licensee’s substance abuse to the program. Specifically, this bill:

1. Repeals current law authorizing the MBC to establish a Physician and Surgeon Health and Wellness Program (Program) for physicians and surgeons with substance abuse issues.
2. Reestablishes the MBC’s authority to establish a Program and broadens eligibility for participation in the program to include not only physicians and surgeons but also allied health care professionals licensed by the MBC, applicants, prospective applicants, trainees, and students.
3. Broadens the scope of the Program to provide assistance for individuals struggling with any impairing or potentially impairing physical or mental health conditions, including but not limited to substance use disorders.
4. Provides that Program records including, but not limited to, case notes, progress notes, laboratory reports, evaluation and treatment records, electronic and written correspondence within the program, and between the program and the participant, board, or other involved entities including, but not limited to, employers, credentialing bodies, referents, or other collateral sources, relating to participants are investigatory or security files compiled for licensing purposes, as described in Section 7923.600 of the Government Code, that are exempt from disclosure under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) and not subject to discovery by subpoena or admissible as evidence except:
5. To defend a program professional in any civil or administrative action involving a participant regarding the restriction or revocation of that participant’s clinical or staff privileges, or termination of the participant from employment, a school, or training program. In such an action, the program shall, upon subpoena issued by any party to the action and upon the requesting party seeking a protective order for the requested disclosure, provide to the parties to the action written disclosure that includes all of the following information:
6. Verification of the individual’s participation in the program as it relates to aspects of program involvement at issue in the action.
7. The dates of participation.
8. Whether the program identified an impairing or potentially impairing health condition.
9. Whether the individual was compliant with their program agreement.
10. Whether the individual successfully completed the program.
11. Records provided to the board as required by this article.
12. Clarifies that all other records held by the board about the Program are also investigatory or security files compiled for licensing purposes, as described in Section 7923.600 of the Government Code, that are exempt from disclosure pursuant to the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) and are not subject to discovery by subpoena. The records are available to the individual only pursuant to Section 11507.6 of the Government Code, and the board may use those records as evidence in a licensing or disciplinary action against the individual.
13. Provides that, except as specified, a person who, in good faith, reports information or takes action in connection with this article is immune from civil liability for reporting information or taking the action as authorized by law; provides that the immunity from civil liability shall be liberally construed to accomplish the purposes of the Program.
14. States that the persons and entities entitled to immunity shall include all of the following:
15. The administering entity, board, and committees.
16. Members, employees, and agents of the administering entity, board, and committees.
17. Persons reporting a licensee, trainee, applicant, or prospective applicant for licensure as being possibly impaired or providing information about the subject’s impairment to the board or administering entity.
18. Professionals supervising or monitoring the course of the program participant’s treatment or rehabilitation, including when they report progress or noncompliance to the board as warranted.
19. Provides that the courts are strongly encouraged to impose sanctions on program participants and their attorneys whose allegations regarding violations of this article are not made in good faith and are without either reasonable objective or substantive grounds, or both.
20. Clarifies that the immunity provided in 6) is in addition to any other immunity provided by law.
21. Provides that the board is not required to defend or indemnify a person in a civil action relating to their reporting of information, unless the person who makes the report is an employee of the board and their report is not described in 9).
22. States that 6) does not apply in a case where it can be proven that a person made a false report and either knew that the report was false, or made the report with reckless disregard of the truth or falsity of the report. In such a case, the person who makes the report is liable for any damages caused to the subject of the report.
23. Requires licensees of the MBC to report to the administering entity or the MBC, the name and current contact information of another licensee if they, in their good faith judgment, believe that the other licensee may be impaired.
24. Exempts program staff and agents from this reporting mandate when the licensee is compliant with program requirements and does not pose a risk to patient safety.
25. Prohibits the administering entity or MBC from disclosing the name of the referring individual to the referred licensee under any circumstances, except with the express written permission of the referring individual, or if otherwise required by law.

EXISTING LAW:

1. Provides that the people have the right of access to information concerning the conduct of the people’s business and, therefore, the writings of public officials and agencies shall be open to public scrutiny. Specifies that any law or rule that limits the public right of access shall be adopted with findings demonstrating the interest protected by the limitation. (California Constitution, art. I, Section 3.)
2. Provides that, in enacting the California Public Records Act (CPRA), the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Government Code Section 7921.000.)
3. Defines “public records” to include any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics and those in the custody of, or maintained by, the Governor’s office means any writing prepared on or after January 6, 1975. (Government Code Section 7920.530.)
4. Provides that public records are open to inspection at all times during the office hours of a state or local agency and every person has a right to inspect any public record, exempted as otherwise provided; and that any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law. (Government Code Section 7922.525.)
5. Requires a public agency to determine whether it has disclosable public records in its possession within ten days or, in specified “unusual circumstances,” within 14 days of the ten-day period, of its receipt of a request for public records and to promptly notify the person making the request of the determination and the reasons therefor. (Government Code Section 7922.535 (a).)
6. Requires a public agency to justify withholding any record by demonstrating that the record in question is exempt under express provisions of this division, or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. (Government Code Section 7922.000.)
7. Provides that the disclosure of records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes is not required. (Government Code Section 7923.600 (a).)
8. Specifies that after the initiation of administrative proceeding in which a respondent or other party is entitled to a hearing on the merits, a party, upon written request made to another party, prior to the hearing and within specified deadlines is entitled to (1) obtain the names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing, and (2) inspect and make a copy of any of the following in the possession or custody or under the control of the other party, including:  
9. Any other writing or thing which is relevant and which would be admissible in evidence. (Government Code Section 11507.6 (e).)
10. Investigative reports made by or on behalf of the agency or other party pertaining to the subject matter of the proceeding. (Id. at (f).)
11. Establishes the Department of Consumer Affairs (DCA) within the Business, Consumer Services, and Housing Agency. (Business and Professions Code (BPC) Section 100.)
12. Requires a board to order a licensee to cease practice if the licensee tests positive for any substance that is prohibited under the terms of the licensee’s probation or diversion program. (BPC Section 315.2.)
13. Authorizes boards to adopt regulations authorizing the board to order a licensee on probation or in a diversion program to cease practice for major violations and when the board orders a licensee to undergo a clinical diagnostic evaluation pursuant to the uniform and specific standards. (BPC Section 315.4.)
14. Establishes the Medical Board of California (MBC) within the DCA, a regulatory board comprised of 15 appointed members, including five public members and eight physician members appointed by the Governor, one public member appointed by the Senate Committee on Rules, and one public member appointed by the Speaker of the Assembly. (BPC Section 2001.)
15. Declares that protection of the public shall be the highest priority for the MBC in exercising its licensing, regulatory, and disciplinary functions. (BPC Section 2001.1.)
16. Provides that all proceedings against a licensee for unprofessional conduct, or against an applicant for licensure for unprofessional conduct or cause, shall be conducted in accordance with the Administrative Procedure Act. (BPC Section 2230.)
17. Requires any oral or written information reported to the MBC about a physician’s participation in the Program to remain confidential and shall not constitute a waiver of any existing evidentiary privileges. However, confidentiality regarding the physician and surgeon’s participation in the program and related records shall not apply if the board has referred a participant as a condition of probation or as otherwise authorized by law. (BPC Section 2340.6.)
18. Provides that a person who is not mandated by law to report suspected child abuse who reports a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any person who makes a report of child abuse or neglect known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused. (Penal Code Section 11172 (a).)
19. Provides that an employer shall in all cases indemnify his employee for losses caused by the employer’s want of ordinary care. (Labor Code Section 2800.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: This bill, sponsored by the Medical Board of California (MBC), makes a number of changes to existing law that are designed and intended to help licensed health care professionals with substance use disorders continue to safely practice medicine. The bill does the following: (1) revises the Physician Health and Wellness Program (Program) and the authority of the MBC in relation to the Program in order to align with national best practices; (2) makes records regarding the Program exempt from public disclosure, except as specified; and (3) provides immunity from civil liability for the reporting of misconduct of a physician to the MBC or Program. The first and most significant part of the bill—repealing and recasting the Program—is in the jurisdiction of the Assembly Committee on Business & Professions, which recently heard and approved the bill by a vote of 16-0 (with two members not voting). Therefore, this analysis focuses on the second and third issues, regarding public records and immunity for reporters of misconduct, topics that are in this Committee’s jurisdiction. According to the author:

When our physicians struggle with substance use disorders, it is in the best interest of both patients and physicians to support them in seeking out help. AB 408 builds off California’s longstanding efforts to destigmatize seeking treatment for substance use disorders. This bill is fundamentally about patient safety. Today, physicians struggling with substance use disorders can feel pressure to hide their condition and often never get the help they need. The creation of this program will help healthcare providers get the care they need, which will better protect patients in the end.

Background - the long struggle to create an effective SUD treatment and diversion program for physicians. National studies show that a significant percentage of physicians meet the diagnostic criteria for substance use disorder (SUD) or dependence compared to the general population. (Oreskovich, Michael R. et al. “The prevalence of substance use disorders in American physicians.” The American journal on addictions vol. 24, 1 (2015).) The increased prevalence of substance use disorders among physicians has been associated with the high-stress work environment of medical practice, access to prescription medications, and cultural factors that stigmatize mental health issues and discourage seeking care. (Hughes, P. H. et al. “Prevalence of substance use among US physicians.” JAMA vol. 267, 17 (1992).)

One effective mechanism for addressing substance use disorders within the medical profession (like the general population) is SUD treatment; and for physicians specifically, a treatment program needs to identify, treat, and monitor practitioners who struggle with addiction or other potential impairments so they do not pose a danger to public health and safety. The first such program in California was established in 1979. The MBC’s original Diversion Program was intended to facilitate the rehabilitation of physicians suffering from drug or alcohol abuse while allowing them to continue practicing medicine under a treatment program, which could be customized to include specific safeguards such as practice monitors and regular drug and alcohol testing. Physicians who failed to comply with their individual treatment plan would face license suspension or would be otherwise referred to the MBC’s enforcement program for discipline.

In June 2007, the California State Auditor issued a report about the Program which found that many of the recommendations made by the MBC’s Enforcement Monitor had not been implemented and that the Program struggled to sufficiently monitor licensee participation and take action for violations of a participant’s treatment plan. In response to this audit, the MBC voted to abolish its Diversion Program, which was formally repealed on July 1, 2008. Senate Bill 1441 (Ridley-Thomas), Chap. 548, Stats. 2008, established the Substance Abuse Coordination Committee within the DCA to formulate “consistent and uniform standards and best practices in dealing with substance-abusing licensees.” In 2016, Senate Bill 1177 (Galgiani), Chap. 591, Stats. 2016, authorized the MBC to establish a Physician Health and Wellness Program for the early identification of, and appropriate interventions to support a physician and surgeon in their rehabilitation from substance abuse. The MBC began its formal rulemaking process to implement SB 1177 shortly thereafter and held interested parties meetings in 2017 to obtain input on potential regulatory language. In 2021, the MBC voted to move forward with another revised version of its regulations, which were formally noticed for public comment in September 2023. After receiving public comments through November 2023, the MBC reviewed what it has described as “thoughtful feedback from stakeholders and experts who raised valid concerns about the effectiveness of our proposal and its potential unintended consequences.” Specifically, the MBC determined that the Program authorized by Senate Bill 1177 would not align with national best practices for encouraging participation and achieving successful outcomes.

One specific concern was that Senate Bill 1177 would still require the MBC’s Program to comply with the Uniform Standards, which would require the board to disclose information to the public on licensees participating in the Program “regardless of whether the licensee is a self-referral or a board referral.” Arguably, this would only serve to further stigmatize practitioners who seek care for disorders and disincentivize those who would otherwise consider voluntarily entering a program. In response to these concerns, the MBC voted to withdraw its proposed regulations and instead move forward with legislation to revise its authority to establish a Physician Health and Wellness Program to allow it to implement a program that aligns with best practices.

Public Access to Public Records. Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Section 7921.000.) In 2004, the right of public access was enshrined in the California Constitution with the passage of Proposition 59 (Nov. 3, 2004, statewide general election), placed on the ballot by a unanimous vote of both houses of the Legislature. SCA 1 (Burton, Ch. 1, Stats. 2004) amended the California Constitution to specifically protect the right of the public to access and obtain government records: “The people have the right of access to information concerning the conduct of the people’s business, and therefore . . . the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. I, sec. 3 (b)(1).) In 2014, voters approved Proposition 42 (Jun. 3, 2014, statewide direct primary election), placed on the ballot by a unanimous vote of both houses of the Legislature, (SCA 3 (Leno, Ch. 123, Stats. 2013), to further increase public access to government records by requiring local agencies to comply with the California Public Records Act and the Ralph M. Brown Act, and with any subsequent statutory enactment amending either act, as provided. (Cal. Const., art. I, sec. 3 (b)(7).)

Under the California Public Records Act (CPRA), public records are open to inspection at all times during the office hours of a public agency for inspection by the public, unless exempted. (Section 7922.525.) A public record is defined as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any public agency regardless of physical form or characteristics. (Section 7920.530.) Despite the CPRA’s general rule that public records are open to inspection and subject to disclosure, the CPRA provides exceptions providing that a document, or a portion thereof, is not subject to public disclosure. An exemption can be explicit in the CPRA itself, pursuant to another law, or justified by the agency’s determination that, based on the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. (See Sections 7922.000, 7922.525, 7922.530.)

This bill provides that records of the Program are exempt from the mandatory disclosure provisions of the CPRA as “investigatory or security files compiled for licensing purposes, as described in Section 7923.600 of the Government Code.” That section provides:

[T]his division does not require the disclosure of records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes is not required. (Government Code Section 7923.600 (a).)

The records at issue are specified to include “case notes, progress notes, laboratory reports, evaluation and treatment records, electronic and written correspondence within the Program, and between the program and the participant, board, or other involved entities, including, but not limited to, employers, credentialing bodies, referents, or other collateral sources, relating to participants.” The bill specifies that these records are not subject to discovery by subpoena, but are available to the individual via discovery should the individual be subject to formal disciplinary proceedings. Also, the MBC is authorized to use the records as evidence in a licensing or disciplinary action against the individual.

These records are likely to include sensitive personal information, including about a physician’s suspected or diagnosed SUD. Also the Program serves as an alternative to the MBC’s regular disciplinary investigative system (that investigates misconduct prior to formal administrative or disciplinary action being taken against a physician), records about which are exempt from public disclosure. Finally, the bill’s exemption from mandatory disclosure to the public in response to a CPRA request is not a prohibition from public disclosure of the documents, unless the records are confidential under another law (such as the federal HIPAA or the state CMIA). Therefore, this provision appears to reasonably balance the privacy interests of physicians with the duty of the MBC to protect the public from impaired physicians.

Mandatory reporting of misconduct and corresponding immunity from liability for such reports. The bill requires, if the MBC establishes the Program, that “all licensees shall report to the Program administrator or the MBC, “the name and current contact information of another licensee if they, in their good faith judgment, believe that the other licensee may be impaired.” It clarifies that, “Program staff and agents are exempt from this reporting mandate when the licensee is compliant with program requirements and does not pose a risk to patient safety.” Also, information about a report is confidential. “The administering entity or board shall not disclose the name of the referring individual to the referred licensee under any circumstances, except with the express written permission of the referring individual, or if otherwise required by law.”

It also provides that a person who reports information to, or takes action in connection with, the Program is immune from civil liability for their reporting and for taking any other action authorized by the bill. The premise is to encourage sharing of information by whistleblowers, including reports by licensees about their fellow licensees, in the hope that the reported physician will get help and treatment if they do, in fact, have an SUD. The bill provides that the “immunity from civil liability provided by this section shall be liberally construed to accomplish the purposes of the Program. The persons and entities entitled to immunity shall include all of the following:

(A) The administering entity, board, and committees.

(B) Members, employees, and agents of the administering entity, board, and committees.

(C) Persons reporting a licensee, trainee, applicant, or prospective applicant for licensure as being possibly impaired or providing information about the subject’s impairment to the board or administering entity.

(D) Professionals supervising or monitoring the course of the program participant’s treatment or rehabilitation, including when they report progress or noncompliance to the board as warranted.”

However, the immunity does not apply in a case where it can be proven that the reporting party made a false report and either knew that the report was false, or made the report with reckless disregard of the truth or falsity of the report. In such a case, the person who made the report would be liable for any damages caused to the subject of the report. Recent amendments to the bill clarify that although the MBC generally does not have an obligation to defend or indemnify a whistleblower who is sued as a result of their report, they must do so when the whistleblower is an employee of the MBC, as all employers are required to do. (See Labor Code Section 2802.) However, under the bill in print, the MBC would not have to defend or indemnify an employee who knowingly made a false or malicious report.

The immunity provision in the bill is more consistent with the immunity provided for persons who voluntarily report suspected wrongdoing than with laws mandating reporting of misconduct. Immunity is provided as an incentive or reward for doing something that a person is not legally required to do. There is no immunity in existing law, for example, for a report of suspected child abuse by a person who is mandated to make such a report. Instead, that person is merely carrying out their obligation under law. Their incentive to make a report and “reward” for doing so is not being prosecuted for violating the law. On the other hand, existing law provides immunity for reports of suspected child abuse made by persons who are not mandated reporters. Penal Code Section 11172 (a) reads as follows:

Any other [non-mandated reporter] person reporting a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any person who makes a report of child abuse or neglect known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused.

At least one organization, Stanford Medicine Alliance for Disability Inclusion and Equity (SMADIE) and its associated Disability in Medicine Mutual Mentorship Program (DM3P), objects to the bill’s mandatory reporting provision, writing that it represents a “chilling cultural shift that further deters physicians with disabilities or mental health histories from seeking appropriate care. AB 408 erodes core ethical foundations and legal protections of disability rights by conflating diagnosis with incompetence, subjecting those with protected medical conditions to greater scrutiny relative to their peers.” Indeed, the bill could illogically require a licensee to make a report regarding another licensee with a suspected SUD and subject the reporting licensee to disciplinary action for failure to make a report, but also provide immunity to that same person if they did make a report.

Given these policy objections and inconsistencies with existing law, the author may wish to amend the bill as it moves forward to make the reporting provision of the bill voluntary, rather than mandatory.

Anti-trust concerns raised by the opposition. The Consumer Protection Policy Center (CPPC) at the University of San Diego School of Law points out that the MBC (and any policy decisions made by the MBC, including establishment of the Program) raise antitrust concerns.

1. In 2015, the U.S. Supreme Court held that a state agency controlled by a majority of active-market participants (active licensees) is not exempt from antitrust regulations under the Sherman Act by the state-action doctrine, unless “the action is clearly articulated and affirmatively expressed as state policy,” and the state actively supervises the policy. (N.C. State Bd. of Dental Exam’rs v. FTC (2015) 574 U.S. 494, 504.) This decision arguably is applicable to the MBC. Just as the MBC was created by the passage of the Medical Practice Act, North Carolina’s Dental Board was created through passage of its Dental Practice Act. (Ibid. [citations omitted].) The principal duty of both boards is essentially to “create, administer, and enforce a licensing system” for their respective licensees, as “matter[s] of public concern.” (Id., at p. 499.) MBC’s Board is composed of a majority of licensed medical professionals (eight out of fifteen members), and the N.C. Dental Board was also made up of a majority of licensed dentists. Both boards promulgate rules and are subject to their respective state’s Administrative Procedures Acts, public records acts, and open-meetings laws. (Id., at pp. 499-500.)
2. The Court in N.C. Dental recognized that state agencies may claim to act under state authority despite divergence from the State’s definition of “the public good,” and subsequently “[t]he active supervision requirement demands . . . that state officials have exercised power to review particular anticompetitive acts of private parties and disapprove those that fail to accord with state policy.’” (N.C. State Bd., supra, at p. 503.) With this legal background in mind, MBC’s proposed Physician Health and Wellness Program (PHWP) could pose antitrust issues given the majority-licensee makeup of the Board and lack of active state supervision in deciding which doctors should be enrolled in a PHWP to avoid discipline.

CPPC contends that there is an alternative to this bill that would avoid these antitrust concerns; they contend that the alternative would address the problem of SUD among physicians, “avoid the time-consuming nature of a Board-run wellness program, and still encourage physician well-being.” CPPC suggests that:

[T]he Legislature can enact a new complaint procedure to evaluate when a doctor is suitable for rehabilitation center treatment. Currently, when a complaint is filed with the MBC, the Board approves the complaint and sends it to the investigation unit with DCA. MBC has the power to enforce an interim suspension order to restrain the doctor’s license, but otherwise the investigation would continue before it would eventually be referred to the Attorney General’s Office (AG) and then later assigned to an Administrative Law Judge (ALJ). This process can take years before an ALJ sees the complaint. Meanwhile, the doctor continues to practice as a fully licensed physician.

A new process can instead refer complaints to the AG first, at which point an ALJ can determine whether rehabilitation treatment is appropriate for the physician in question. Further, Courts already have approved treatment programs in California for substance abuse related crimes. An ALJ can refer a physician to one of these Court approved treatment facilities and the physician would be liable for providing updates on the rehabilitation process to the ALJ. If an ALJ determines that treatment is appropriate in lieu of discipline, then that would be an independent decision that is not influenced by licensed members of the medical profession. This independence is particularly beneficial as disciplinary decisions by a board controlled by a majority of licensees can lead to antitrust issues.

In light of the fact that the MBC has lacked an effective SUD diversion and treatment program for physicians for decades, it may want to take additional time to consider alternatives to the Program such as the one suggested by CPPC. As the bill moves forward, the author is encouraged to work with stakeholders to consider if consensus can be reached about the best way to achieve the laudable goals of the bill in a manner that does not risk antitrust concerns or public protection.

Other requests for amendments. Writing in opposition to the bill, unless amended, the Consumer Attorneys of California write as follows:

Moreover, AB 408 does not mandate enforcement reporting when a physician fails a drug test or is terminated from the program. Section 2342(g) creates a dangerous loophole by vesting reporting responsibilities in an advisory committee rather than the Medical Board itself. This raises real concerns about whether serious misconduct will ever reach the enforcement staff tasked with protecting patient safety.

Indeed, although the bill does specify that the MBC is authorized to use Program records as evidence in a licensing or disciplinary action against the individual, it does not require that they are used, or that disciplinary proceedings are at least considered against a licensee who fails to complete the Program. Instead, the wording of the bill seems to assume and imply that any licensee who enters the Program will successfully complete the program.

As the bill moves forward, the author should consider amending the bill to address concerns and consider mandating that disciplinary proceedings are initiated in appropriate specific circumstances that could present a danger to public safety.

ARGUMENTS IN SUPPORT: The bill’s sponsor, MBC, writes:

Whether due to a substance use disorder, or another mental or physical health condition, impaired healthcare providers can cause devastating harm to the public. AB 408 authorizes the Board to establish a physician health and wellness program (program) that will coordinate treatment and monitoring services for the Board’s current and future licensees consistent with national best practices so that they can get the help they need to stay healthy and provide the high-quality care that patients deserve. This proposal also includes reporting requirements so that the program and/or Board is aware of its licensees who are unsafe to practice, authorizes program quality and compliance evaluations, and requires public disclosure of various program statistics.

The Board’s mission is to protect consumers and, too often, we first learn about a dangerous physician after their patient has been hurt. This legislation takes a proactive approach to prevent patient harm by providing a confidential pathway for physicians and other providers to seek care and treatment early, before they become unsafe to practice medicine.

The California Medical Association, representing the state’s 55,000 physicians and medical students, writes as follows in support of the bill:

CMA supports AB 408 because it creates the framework for an effective, confidential program – similar to those in other states – that supports physicians’ health and wellness and protects patients by allowing physicians to be at their best.

California has not had a program for MBC licensees since 2008. California’s existing PHP authority authorized under SB 1177 (Galgiani, 2016) lacks important components, like confidentiality protections and the ability for the MBC to refer licensees to the program in lieu of discipline, that would increase participation. The MBC projected that only about 12 physicians would enroll – far fewer than other states’ programs and far fewer than data on prevalence suggest could benefit

ARGUMENTS IN OPPOSITION: The CPPC characterizes the Program as an unnecessary distraction from the urgent public protection functions of the MBC, writing that the stated need for the program lacks “persuasive evidence” and that the Program would not serve enough licensees to warrant the time and resources of the MBC that could better be expended elsewhere. The CPPC observes that:

Disciplinary data further undermines the case for California's proposed PHWP. The state imposed 55 administrative actions and probation violations related to substance abuse in 2023–2024 (14.7% of 374 total disciplinary cases), 11 while New York, with its established PHWP, took only 30 final board actions for impairment (10.6% of 284 cases).12 This near parity in disciplinary rates demonstrates that California's existing enforcement mechanisms address substance abuse as effectively as states with dedicated monitoring programs. The marginal difference in disciplinary outcomes, despite New York's additional PHWP infrastructure, provides no compelling evidence that such a program would meaningfully enhance patient protection in California.

Several groups in opposition agree that the establishment of the Program by the MBC is not a priority and not in the public interest. They also contend that the Program could endanger the public. For example, Consumer Watchdog writes in opposition to the bill as follows:

AB 408 would create a drug and alcohol diversion program run by the Medical Board of

California so doctors with abuse problems could be sent into rehab in lieu of board disciplinary action. The bill would replicate the problems with the Medical Board’s prior diversion program that allowed repeat offender doctors to evade discipline by entering the program, fail, and keep practicing, placing patients at risk.

. . .

Take the example of a doctor the Medical Board filed charges against last week. In 2022 an anesthesiologist from San Diego was discovered impaired while on duty in the labor and delivery department of her hospital. Witnesses observed her staggering, walking into walls, and slurring her speech. The hospital reported the doctor to the Medical Board, and she confessed in the course of the investigation to self-administering propofol and other medications while on duty and stealing drugs from the operating room. The board placed her on probation, mandating compliance with biological fluid testing requirements. Six months later, the Medical Board imposed a fine for her failure to adhere to the mandated testing requirements. This year the Board moved again to revoke the doctor’s license for failing to show up for testing, check in for tests, or cooperate with probation interviews. The probation, the fine, and the latest effort to revoke the doctor’s license are filed publicly and are available to patients on the Medical Board’s website.

Contrast that public process to the secrecy and lack of accountability that would have governed if the program envisioned in AB 408 had been invoked. The doctor would have gone to a secret treatment program instead of facing investigation, with no public notice the doctor was on probation for using drugs on the job. The doctor’s subsequent failures to take drug tests or meet other requirements could have been kept quiet by the program because AB 408 does not have mandatory consequences, and does not even require a Board enforcement investigation of a failed drug test or other program violations. Patients could be seeing this doctor today with no knowledge of her history of drug abuse or subsequent failures to comply with a drug testing program.

REGISTERED SUPPORT / OPPOSITION:

Support

American College of Obstetricians & Gynecologists - District IX
California Academy of Child and Adolescent Psychiatry
California Dental Association
California Medical Association (CMA)
California Orthopedic Association
California Public Protection & Physician Health
California Society of Addiction Medicine
California Society of Anesthesiologists
California Society of Dermatology & Dermatologic Surgery
California Society of Pathologists
California State Council of Service Employees International Union (seiu California)
Center for Professional Recovery
Dr. Lorna Breen Heroes' Foundation
Drug Policy Alliance
Federation of State Physician Health Programs
Medical Board of California
Union of American Physicians and Dentists

Opposition

Consumer Protection Policy Center/USD School of Law

Consumer Attorneys of California (unless amended)

Consumer Watchdog

Disability in Medicine Mutual Mentorship Program

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334

Date of Hearing: April 29, 2025

ASSEMBLY COMMITTEE ON JUDICIARY

Ash Kalra, Chair

ABPCA Bill Id:AB 408

Author:(Berman) – As Amended Ver:April 21, 2025

SUBJECT: Physician Health and Wellness Program

KEY ISSUE: should records maintained by the medical board of california’s Physician Health and Wellness Program (which is recast by this bill to align with national best practices for helping physicians and other licensed health care providers with substance use disorders continue to practice) be exempt from public disclosure, except as specified; and should persons who voluntarily report information about a physician’s substance use to the board be immune from civil liability for doing so?

SYNOPSIS

National studies show that a significant percentage of physicians meet the diagnostic criteria for substance use disorder (SUD) or dependence compared to the general population. The increased prevalence of substance use disorders among physicians has been associated with the high-stress work environment of medical practice, access to prescription medications, and cultural factors that stigmatize mental health issues and discourage seeking care. Despite the crucial need for California to have an effective SUD treatment and diversion program that will allow physicians to get the treatment they need, but still protect the public from impaired physicians, the state and the California Medical Board (MBC) has struggled for decades to establish such a program.

This bill attempts to do just that. Sponsored by the MBC, it makes a number of changes to existing law that is designed and intended to help licensed health care professionals with substance use disorders continue to safely practice medicine. It does the following: (1) revises the Physician Health and Wellness Program (Program) and the authority of the MBC in relation to the Program in order to align with national best practices; (2) makes records regarding the Program exempt from public disclosure, except as specified; and (3) provides immunity from civil liability for the reporting of misconduct of a physician to the MBC or Program. The first and most significant part of the bill—repealing and recasting the Program—is in the jurisdiction of the Assembly Committee on Business & Professions, which recently heard and approved the bill by a vote of 16-0 (with two members not voting). Therefore, this analysis focuses on the second and third issues, regarding public records and immunity for whistleblowers, topics that are in this Committee’s jurisdiction.

The bill is supported by a large number of organizations representing physicians and other licensed health care professionals. It is opposed by a number of consumer groups, advocates for good governance and, unless amended, by the Consumer Attorneys of California. These groups argue that the Program is not necessary; could endanger the safety of the public; and perpetuate antitrust concerns that are fundamental to the nature of the MBC. These issues – and amendments that the author may wish to consider as the bill moves forward – are explained in the analysis.

SUMMARY: Revises, in order to align with national best practices, the authority of the Medical Board of California (MBC) to establish a Physician Health and Wellness Program that is intended to help physicians and other licensed health care professionals with substance use disorders continue to safely practice within the scope of their license; makes records regarding the program exempt from public disclosure, except as specified; and provides immunity from civil liability for reporting information about a licensee’s substance abuse to the program. Specifically, this bill:

1. Repeals current law authorizing the MBC to establish a Physician and Surgeon Health and Wellness Program (Program) for physicians and surgeons with substance abuse issues.
2. Reestablishes the MBC’s authority to establish a Program and broadens eligibility for participation in the program to include not only physicians and surgeons but also allied health care professionals licensed by the MBC, applicants, prospective applicants, trainees, and students.
3. Broadens the scope of the Program to provide assistance for individuals struggling with any impairing or potentially impairing physical or mental health conditions, including but not limited to substance use disorders.
4. Provides that Program records including, but not limited to, case notes, progress notes, laboratory reports, evaluation and treatment records, electronic and written correspondence within the program, and between the program and the participant, board, or other involved entities including, but not limited to, employers, credentialing bodies, referents, or other collateral sources, relating to participants are investigatory or security files compiled for licensing purposes, as described in Section 7923.600 of the Government Code, that are exempt from disclosure under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) and not subject to discovery by subpoena or admissible as evidence except:
5. To defend a program professional in any civil or administrative action involving a participant regarding the restriction or revocation of that participant’s clinical or staff privileges, or termination of the participant from employment, a school, or training program. In such an action, the program shall, upon subpoena issued by any party to the action and upon the requesting party seeking a protective order for the requested disclosure, provide to the parties to the action written disclosure that includes all of the following information:
6. Verification of the individual’s participation in the program as it relates to aspects of program involvement at issue in the action.
7. The dates of participation.
8. Whether the program identified an impairing or potentially impairing health condition.
9. Whether the individual was compliant with their program agreement.
10. Whether the individual successfully completed the program.
11. Records provided to the board as required by this article.
12. Clarifies that all other records held by the board about the Program are also investigatory or security files compiled for licensing purposes, as described in Section 7923.600 of the Government Code, that are exempt from disclosure pursuant to the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) and are not subject to discovery by subpoena. The records are available to the individual only pursuant to Section 11507.6 of the Government Code, and the board may use those records as evidence in a licensing or disciplinary action against the individual.
13. Provides that, except as specified, a person who, in good faith, reports information or takes action in connection with this article is immune from civil liability for reporting information or taking the action as authorized by law; provides that the immunity from civil liability shall be liberally construed to accomplish the purposes of the Program.
14. States that the persons and entities entitled to immunity shall include all of the following:
15. The administering entity, board, and committees.
16. Members, employees, and agents of the administering entity, board, and committees.
17. Persons reporting a licensee, trainee, applicant, or prospective applicant for licensure as being possibly impaired or providing information about the subject’s impairment to the board or administering entity.
18. Professionals supervising or monitoring the course of the program participant’s treatment or rehabilitation, including when they report progress or noncompliance to the board as warranted.
19. Provides that the courts are strongly encouraged to impose sanctions on program participants and their attorneys whose allegations regarding violations of this article are not made in good faith and are without either reasonable objective or substantive grounds, or both.
20. Clarifies that the immunity provided in 6) is in addition to any other immunity provided by law.
21. Provides that the board is not required to defend or indemnify a person in a civil action relating to their reporting of information, unless the person who makes the report is an employee of the board and their report is not described in 9).
22. States that 6) does not apply in a case where it can be proven that a person made a false report and either knew that the report was false, or made the report with reckless disregard of the truth or falsity of the report. In such a case, the person who makes the report is liable for any damages caused to the subject of the report.
23. Requires licensees of the MBC to report to the administering entity or the MBC, the name and current contact information of another licensee if they, in their good faith judgment, believe that the other licensee may be impaired.
24. Exempts program staff and agents from this reporting mandate when the licensee is compliant with program requirements and does not pose a risk to patient safety.
25. Prohibits the administering entity or MBC from disclosing the name of the referring individual to the referred licensee under any circumstances, except with the express written permission of the referring individual, or if otherwise required by law.

EXISTING LAW:

1. Provides that the people have the right of access to information concerning the conduct of the people’s business and, therefore, the writings of public officials and agencies shall be open to public scrutiny. Specifies that any law or rule that limits the public right of access shall be adopted with findings demonstrating the interest protected by the limitation. (California Constitution, art. I, Section 3.)
2. Provides that, in enacting the California Public Records Act (CPRA), the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Government Code Section 7921.000.)
3. Defines “public records” to include any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics and those in the custody of, or maintained by, the Governor’s office means any writing prepared on or after January 6, 1975. (Government Code Section 7920.530.)
4. Provides that public records are open to inspection at all times during the office hours of a state or local agency and every person has a right to inspect any public record, exempted as otherwise provided; and that any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law. (Government Code Section 7922.525.)
5. Requires a public agency to determine whether it has disclosable public records in its possession within ten days or, in specified “unusual circumstances,” within 14 days of the ten-day period, of its receipt of a request for public records and to promptly notify the person making the request of the determination and the reasons therefor. (Government Code Section 7922.535 (a).)
6. Requires a public agency to justify withholding any record by demonstrating that the record in question is exempt under express provisions of this division, or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. (Government Code Section 7922.000.)
7. Provides that the disclosure of records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes is not required. (Government Code Section 7923.600 (a).)
8. Specifies that after the initiation of administrative proceeding in which a respondent or other party is entitled to a hearing on the merits, a party, upon written request made to another party, prior to the hearing and within specified deadlines is entitled to (1) obtain the names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing, and (2) inspect and make a copy of any of the following in the possession or custody or under the control of the other party, including:  
9. Any other writing or thing which is relevant and which would be admissible in evidence. (Government Code Section 11507.6 (e).)
10. Investigative reports made by or on behalf of the agency or other party pertaining to the subject matter of the proceeding. (Id. at (f).)
11. Establishes the Department of Consumer Affairs (DCA) within the Business, Consumer Services, and Housing Agency. (Business and Professions Code (BPC) Section 100.)
12. Requires a board to order a licensee to cease practice if the licensee tests positive for any substance that is prohibited under the terms of the licensee’s probation or diversion program. (BPC Section 315.2.)
13. Authorizes boards to adopt regulations authorizing the board to order a licensee on probation or in a diversion program to cease practice for major violations and when the board orders a licensee to undergo a clinical diagnostic evaluation pursuant to the uniform and specific standards. (BPC Section 315.4.)
14. Establishes the Medical Board of California (MBC) within the DCA, a regulatory board comprised of 15 appointed members, including five public members and eight physician members appointed by the Governor, one public member appointed by the Senate Committee on Rules, and one public member appointed by the Speaker of the Assembly. (BPC Section 2001.)
15. Declares that protection of the public shall be the highest priority for the MBC in exercising its licensing, regulatory, and disciplinary functions. (BPC Section 2001.1.)
16. Provides that all proceedings against a licensee for unprofessional conduct, or against an applicant for licensure for unprofessional conduct or cause, shall be conducted in accordance with the Administrative Procedure Act. (BPC Section 2230.)
17. Requires any oral or written information reported to the MBC about a physician’s participation in the Program to remain confidential and shall not constitute a waiver of any existing evidentiary privileges. However, confidentiality regarding the physician and surgeon’s participation in the program and related records shall not apply if the board has referred a participant as a condition of probation or as otherwise authorized by law. (BPC Section 2340.6.)
18. Provides that a person who is not mandated by law to report suspected child abuse who reports a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any person who makes a report of child abuse or neglect known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused. (Penal Code Section 11172 (a).)
19. Provides that an employer shall in all cases indemnify his employee for losses caused by the employer’s want of ordinary care. (Labor Code Section 2800.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: This bill, sponsored by the Medical Board of California (MBC), makes a number of changes to existing law that are designed and intended to help licensed health care professionals with substance use disorders continue to safely practice medicine. The bill does the following: (1) revises the Physician Health and Wellness Program (Program) and the authority of the MBC in relation to the Program in order to align with national best practices; (2) makes records regarding the Program exempt from public disclosure, except as specified; and (3) provides immunity from civil liability for the reporting of misconduct of a physician to the MBC or Program. The first and most significant part of the bill—repealing and recasting the Program—is in the jurisdiction of the Assembly Committee on Business & Professions, which recently heard and approved the bill by a vote of 16-0 (with two members not voting). Therefore, this analysis focuses on the second and third issues, regarding public records and immunity for reporters of misconduct, topics that are in this Committee’s jurisdiction. According to the author:

When our physicians struggle with substance use disorders, it is in the best interest of both patients and physicians to support them in seeking out help. AB 408 builds off California’s longstanding efforts to destigmatize seeking treatment for substance use disorders. This bill is fundamentally about patient safety. Today, physicians struggling with substance use disorders can feel pressure to hide their condition and often never get the help they need. The creation of this program will help healthcare providers get the care they need, which will better protect patients in the end.

Background - the long struggle to create an effective SUD treatment and diversion program for physicians. National studies show that a significant percentage of physicians meet the diagnostic criteria for substance use disorder (SUD) or dependence compared to the general population. (Oreskovich, Michael R. et al. “The prevalence of substance use disorders in American physicians.” The American journal on addictions vol. 24, 1 (2015).) The increased prevalence of substance use disorders among physicians has been associated with the high-stress work environment of medical practice, access to prescription medications, and cultural factors that stigmatize mental health issues and discourage seeking care. (Hughes, P. H. et al. “Prevalence of substance use among US physicians.” JAMA vol. 267, 17 (1992).)

One effective mechanism for addressing substance use disorders within the medical profession (like the general population) is SUD treatment; and for physicians specifically, a treatment program needs to identify, treat, and monitor practitioners who struggle with addiction or other potential impairments so they do not pose a danger to public health and safety. The first such program in California was established in 1979. The MBC’s original Diversion Program was intended to facilitate the rehabilitation of physicians suffering from drug or alcohol abuse while allowing them to continue practicing medicine under a treatment program, which could be customized to include specific safeguards such as practice monitors and regular drug and alcohol testing. Physicians who failed to comply with their individual treatment plan would face license suspension or would be otherwise referred to the MBC’s enforcement program for discipline.

In June 2007, the California State Auditor issued a report about the Program which found that many of the recommendations made by the MBC’s Enforcement Monitor had not been implemented and that the Program struggled to sufficiently monitor licensee participation and take action for violations of a participant’s treatment plan. In response to this audit, the MBC voted to abolish its Diversion Program, which was formally repealed on July 1, 2008. Senate Bill 1441 (Ridley-Thomas), Chap. 548, Stats. 2008, established the Substance Abuse Coordination Committee within the DCA to formulate “consistent and uniform standards and best practices in dealing with substance-abusing licensees.” In 2016, Senate Bill 1177 (Galgiani), Chap. 591, Stats. 2016, authorized the MBC to establish a Physician Health and Wellness Program for the early identification of, and appropriate interventions to support a physician and surgeon in their rehabilitation from substance abuse. The MBC began its formal rulemaking process to implement SB 1177 shortly thereafter and held interested parties meetings in 2017 to obtain input on potential regulatory language. In 2021, the MBC voted to move forward with another revised version of its regulations, which were formally noticed for public comment in September 2023. After receiving public comments through November 2023, the MBC reviewed what it has described as “thoughtful feedback from stakeholders and experts who raised valid concerns about the effectiveness of our proposal and its potential unintended consequences.” Specifically, the MBC determined that the Program authorized by Senate Bill 1177 would not align with national best practices for encouraging participation and achieving successful outcomes.

One specific concern was that Senate Bill 1177 would still require the MBC’s Program to comply with the Uniform Standards, which would require the board to disclose information to the public on licensees participating in the Program “regardless of whether the licensee is a self-referral or a board referral.” Arguably, this would only serve to further stigmatize practitioners who seek care for disorders and disincentivize those who would otherwise consider voluntarily entering a program. In response to these concerns, the MBC voted to withdraw its proposed regulations and instead move forward with legislation to revise its authority to establish a Physician Health and Wellness Program to allow it to implement a program that aligns with best practices.

Public Access to Public Records. Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Section 7921.000.) In 2004, the right of public access was enshrined in the California Constitution with the passage of Proposition 59 (Nov. 3, 2004, statewide general election), placed on the ballot by a unanimous vote of both houses of the Legislature. SCA 1 (Burton, Ch. 1, Stats. 2004) amended the California Constitution to specifically protect the right of the public to access and obtain government records: “The people have the right of access to information concerning the conduct of the people’s business, and therefore . . . the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. I, sec. 3 (b)(1).) In 2014, voters approved Proposition 42 (Jun. 3, 2014, statewide direct primary election), placed on the ballot by a unanimous vote of both houses of the Legislature, (SCA 3 (Leno, Ch. 123, Stats. 2013), to further increase public access to government records by requiring local agencies to comply with the California Public Records Act and the Ralph M. Brown Act, and with any subsequent statutory enactment amending either act, as provided. (Cal. Const., art. I, sec. 3 (b)(7).)

Under the California Public Records Act (CPRA), public records are open to inspection at all times during the office hours of a public agency for inspection by the public, unless exempted. (Section 7922.525.) A public record is defined as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any public agency regardless of physical form or characteristics. (Section 7920.530.) Despite the CPRA’s general rule that public records are open to inspection and subject to disclosure, the CPRA provides exceptions providing that a document, or a portion thereof, is not subject to public disclosure. An exemption can be explicit in the CPRA itself, pursuant to another law, or justified by the agency’s determination that, based on the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. (See Sections 7922.000, 7922.525, 7922.530.)

This bill provides that records of the Program are exempt from the mandatory disclosure provisions of the CPRA as “investigatory or security files compiled for licensing purposes, as described in Section 7923.600 of the Government Code.” That section provides:

[T]his division does not require the disclosure of records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes is not required. (Government Code Section 7923.600 (a).)

The records at issue are specified to include “case notes, progress notes, laboratory reports, evaluation and treatment records, electronic and written correspondence within the Program, and between the program and the participant, board, or other involved entities, including, but not limited to, employers, credentialing bodies, referents, or other collateral sources, relating to participants.” The bill specifies that these records are not subject to discovery by subpoena, but are available to the individual via discovery should the individual be subject to formal disciplinary proceedings. Also, the MBC is authorized to use the records as evidence in a licensing or disciplinary action against the individual.

These records are likely to include sensitive personal information, including about a physician’s suspected or diagnosed SUD. Also the Program serves as an alternative to the MBC’s regular disciplinary investigative system (that investigates misconduct prior to formal administrative or disciplinary action being taken against a physician), records about which are exempt from public disclosure. Finally, the bill’s exemption from mandatory disclosure to the public in response to a CPRA request is not a prohibition from public disclosure of the documents, unless the records are confidential under another law (such as the federal HIPAA or the state CMIA). Therefore, this provision appears to reasonably balance the privacy interests of physicians with the duty of the MBC to protect the public from impaired physicians.

Mandatory reporting of misconduct and corresponding immunity from liability for such reports. The bill requires, if the MBC establishes the Program, that “all licensees shall report to the Program administrator or the MBC, “the name and current contact information of another licensee if they, in their good faith judgment, believe that the other licensee may be impaired.” It clarifies that, “Program staff and agents are exempt from this reporting mandate when the licensee is compliant with program requirements and does not pose a risk to patient safety.” Also, information about a report is confidential. “The administering entity or board shall not disclose the name of the referring individual to the referred licensee under any circumstances, except with the express written permission of the referring individual, or if otherwise required by law.”

It also provides that a person who reports information to, or takes action in connection with, the Program is immune from civil liability for their reporting and for taking any other action authorized by the bill. The premise is to encourage sharing of information by whistleblowers, including reports by licensees about their fellow licensees, in the hope that the reported physician will get help and treatment if they do, in fact, have an SUD. The bill provides that the “immunity from civil liability provided by this section shall be liberally construed to accomplish the purposes of the Program. The persons and entities entitled to immunity shall include all of the following:

(A) The administering entity, board, and committees.

(B) Members, employees, and agents of the administering entity, board, and committees.

(C) Persons reporting a licensee, trainee, applicant, or prospective applicant for licensure as being possibly impaired or providing information about the subject’s impairment to the board or administering entity.

(D) Professionals supervising or monitoring the course of the program participant’s treatment or rehabilitation, including when they report progress or noncompliance to the board as warranted.”

However, the immunity does not apply in a case where it can be proven that the reporting party made a false report and either knew that the report was false, or made the report with reckless disregard of the truth or falsity of the report. In such a case, the person who made the report would be liable for any damages caused to the subject of the report. Recent amendments to the bill clarify that although the MBC generally does not have an obligation to defend or indemnify a whistleblower who is sued as a result of their report, they must do so when the whistleblower is an employee of the MBC, as all employers are required to do. (See Labor Code Section 2802.) However, under the bill in print, the MBC would not have to defend or indemnify an employee who knowingly made a false or malicious report.

The immunity provision in the bill is more consistent with the immunity provided for persons who voluntarily report suspected wrongdoing than with laws mandating reporting of misconduct. Immunity is provided as an incentive or reward for doing something that a person is not legally required to do. There is no immunity in existing law, for example, for a report of suspected child abuse by a person who is mandated to make such a report. Instead, that person is merely carrying out their obligation under law. Their incentive to make a report and “reward” for doing so is not being prosecuted for violating the law. On the other hand, existing law provides immunity for reports of suspected child abuse made by persons who are not mandated reporters. Penal Code Section 11172 (a) reads as follows:

Any other [non-mandated reporter] person reporting a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any person who makes a report of child abuse or neglect known to be false or with reckless disregard of the truth or falsity of the report is liable for any damages caused.

At least one organization, Stanford Medicine Alliance for Disability Inclusion and Equity (SMADIE) and its associated Disability in Medicine Mutual Mentorship Program (DM3P), objects to the bill’s mandatory reporting provision, writing that it represents a “chilling cultural shift that further deters physicians with disabilities or mental health histories from seeking appropriate care. AB 408 erodes core ethical foundations and legal protections of disability rights by conflating diagnosis with incompetence, subjecting those with protected medical conditions to greater scrutiny relative to their peers.” Indeed, the bill could illogically require a licensee to make a report regarding another licensee with a suspected SUD and subject the reporting licensee to disciplinary action for failure to make a report, but also provide immunity to that same person if they did make a report.

Given these policy objections and inconsistencies with existing law, the author may wish to amend the bill as it moves forward to make the reporting provision of the bill voluntary, rather than mandatory.

Anti-trust concerns raised by the opposition. The Consumer Protection Policy Center (CPPC) at the University of San Diego School of Law points out that the MBC (and any policy decisions made by the MBC, including establishment of the Program) raise antitrust concerns.

1. In 2015, the U.S. Supreme Court held that a state agency controlled by a majority of active-market participants (active licensees) is not exempt from antitrust regulations under the Sherman Act by the state-action doctrine, unless “the action is clearly articulated and affirmatively expressed as state policy,” and the state actively supervises the policy. (N.C. State Bd. of Dental Exam’rs v. FTC (2015) 574 U.S. 494, 504.) This decision arguably is applicable to the MBC. Just as the MBC was created by the passage of the Medical Practice Act, North Carolina’s Dental Board was created through passage of its Dental Practice Act. (Ibid. [citations omitted].) The principal duty of both boards is essentially to “create, administer, and enforce a licensing system” for their respective licensees, as “matter[s] of public concern.” (Id., at p. 499.) MBC’s Board is composed of a majority of licensed medical professionals (eight out of fifteen members), and the N.C. Dental Board was also made up of a majority of licensed dentists. Both boards promulgate rules and are subject to their respective state’s Administrative Procedures Acts, public records acts, and open-meetings laws. (Id., at pp. 499-500.)
2. The Court in N.C. Dental recognized that state agencies may claim to act under state authority despite divergence from the State’s definition of “the public good,” and subsequently “[t]he active supervision requirement demands . . . that state officials have exercised power to review particular anticompetitive acts of private parties and disapprove those that fail to accord with state policy.’” (N.C. State Bd., supra, at p. 503.) With this legal background in mind, MBC’s proposed Physician Health and Wellness Program (PHWP) could pose antitrust issues given the majority-licensee makeup of the Board and lack of active state supervision in deciding which doctors should be enrolled in a PHWP to avoid discipline.

CPPC contends that there is an alternative to this bill that would avoid these antitrust concerns; they contend that the alternative would address the problem of SUD among physicians, “avoid the time-consuming nature of a Board-run wellness program, and still encourage physician well-being.” CPPC suggests that:

[T]he Legislature can enact a new complaint procedure to evaluate when a doctor is suitable for rehabilitation center treatment. Currently, when a complaint is filed with the MBC, the Board approves the complaint and sends it to the investigation unit with DCA. MBC has the power to enforce an interim suspension order to restrain the doctor’s license, but otherwise the investigation would continue before it would eventually be referred to the Attorney General’s Office (AG) and then later assigned to an Administrative Law Judge (ALJ). This process can take years before an ALJ sees the complaint. Meanwhile, the doctor continues to practice as a fully licensed physician.

A new process can instead refer complaints to the AG first, at which point an ALJ can determine whether rehabilitation treatment is appropriate for the physician in question. Further, Courts already have approved treatment programs in California for substance abuse related crimes. An ALJ can refer a physician to one of these Court approved treatment facilities and the physician would be liable for providing updates on the rehabilitation process to the ALJ. If an ALJ determines that treatment is appropriate in lieu of discipline, then that would be an independent decision that is not influenced by licensed members of the medical profession. This independence is particularly beneficial as disciplinary decisions by a board controlled by a majority of licensees can lead to antitrust issues.

In light of the fact that the MBC has lacked an effective SUD diversion and treatment program for physicians for decades, it may want to take additional time to consider alternatives to the Program such as the one suggested by CPPC. As the bill moves forward, the author is encouraged to work with stakeholders to consider if consensus can be reached about the best way to achieve the laudable goals of the bill in a manner that does not risk antitrust concerns or public protection.

Other requests for amendments. Writing in opposition to the bill, unless amended, the Consumer Attorneys of California write as follows:

Moreover, AB 408 does not mandate enforcement reporting when a physician fails a drug test or is terminated from the program. Section 2342(g) creates a dangerous loophole by vesting reporting responsibilities in an advisory committee rather than the Medical Board itself. This raises real concerns about whether serious misconduct will ever reach the enforcement staff tasked with protecting patient safety.

Indeed, although the bill does specify that the MBC is authorized to use Program records as evidence in a licensing or disciplinary action against the individual, it does not require that they are used, or that disciplinary proceedings are at least considered against a licensee who fails to complete the Program. Instead, the wording of the bill seems to assume and imply that any licensee who enters the Program will successfully complete the program.

As the bill moves forward, the author should consider amending the bill to address concerns and consider mandating that disciplinary proceedings are initiated in appropriate specific circumstances that could present a danger to public safety.

ARGUMENTS IN SUPPORT: The bill’s sponsor, MBC, writes:

Whether due to a substance use disorder, or another mental or physical health condition, impaired healthcare providers can cause devastating harm to the public. AB 408 authorizes the Board to establish a physician health and wellness program (program) that will coordinate treatment and monitoring services for the Board’s current and future licensees consistent with national best practices so that they can get the help they need to stay healthy and provide the high-quality care that patients deserve. This proposal also includes reporting requirements so that the program and/or Board is aware of its licensees who are unsafe to practice, authorizes program quality and compliance evaluations, and requires public disclosure of various program statistics.

The Board’s mission is to protect consumers and, too often, we first learn about a dangerous physician after their patient has been hurt. This legislation takes a proactive approach to prevent patient harm by providing a confidential pathway for physicians and other providers to seek care and treatment early, before they become unsafe to practice medicine.

The California Medical Association, representing the state’s 55,000 physicians and medical students, writes as follows in support of the bill:

CMA supports AB 408 because it creates the framework for an effective, confidential program – similar to those in other states – that supports physicians’ health and wellness and protects patients by allowing physicians to be at their best.

California has not had a program for MBC licensees since 2008. California’s existing PHP authority authorized under SB 1177 (Galgiani, 2016) lacks important components, like confidentiality protections and the ability for the MBC to refer licensees to the program in lieu of discipline, that would increase participation. The MBC projected that only about 12 physicians would enroll – far fewer than other states’ programs and far fewer than data on prevalence suggest could benefit

ARGUMENTS IN OPPOSITION: The CPPC characterizes the Program as an unnecessary distraction from the urgent public protection functions of the MBC, writing that the stated need for the program lacks “persuasive evidence” and that the Program would not serve enough licensees to warrant the time and resources of the MBC that could better be expended elsewhere. The CPPC observes that:

Disciplinary data further undermines the case for California's proposed PHWP. The state imposed 55 administrative actions and probation violations related to substance abuse in 2023–2024 (14.7% of 374 total disciplinary cases), 11 while New York, with its established PHWP, took only 30 final board actions for impairment (10.6% of 284 cases).12 This near parity in disciplinary rates demonstrates that California's existing enforcement mechanisms address substance abuse as effectively as states with dedicated monitoring programs. The marginal difference in disciplinary outcomes, despite New York's additional PHWP infrastructure, provides no compelling evidence that such a program would meaningfully enhance patient protection in California.

Several groups in opposition agree that the establishment of the Program by the MBC is not a priority and not in the public interest. They also contend that the Program could endanger the public. For example, Consumer Watchdog writes in opposition to the bill as follows:

AB 408 would create a drug and alcohol diversion program run by the Medical Board of

California so doctors with abuse problems could be sent into rehab in lieu of board disciplinary action. The bill would replicate the problems with the Medical Board’s prior diversion program that allowed repeat offender doctors to evade discipline by entering the program, fail, and keep practicing, placing patients at risk.

. . .

Take the example of a doctor the Medical Board filed charges against last week. In 2022 an anesthesiologist from San Diego was discovered impaired while on duty in the labor and delivery department of her hospital. Witnesses observed her staggering, walking into walls, and slurring her speech. The hospital reported the doctor to the Medical Board, and she confessed in the course of the investigation to self-administering propofol and other medications while on duty and stealing drugs from the operating room. The board placed her on probation, mandating compliance with biological fluid testing requirements. Six months later, the Medical Board imposed a fine for her failure to adhere to the mandated testing requirements. This year the Board moved again to revoke the doctor’s license for failing to show up for testing, check in for tests, or cooperate with probation interviews. The probation, the fine, and the latest effort to revoke the doctor’s license are filed publicly and are available to patients on the Medical Board’s website.

Contrast that public process to the secrecy and lack of accountability that would have governed if the program envisioned in AB 408 had been invoked. The doctor would have gone to a secret treatment program instead of facing investigation, with no public notice the doctor was on probation for using drugs on the job. The doctor’s subsequent failures to take drug tests or meet other requirements could have been kept quiet by the program because AB 408 does not have mandatory consequences, and does not even require a Board enforcement investigation of a failed drug test or other program violations. Patients could be seeing this doctor today with no knowledge of her history of drug abuse or subsequent failures to comply with a drug testing program.

REGISTERED SUPPORT / OPPOSITION:

Support

American College of Obstetricians & Gynecologists - District IX
California Academy of Child and Adolescent Psychiatry
California Dental Association
California Medical Association (CMA)
California Orthopedic Association
California Public Protection & Physician Health
California Society of Addiction Medicine
California Society of Anesthesiologists
California Society of Dermatology & Dermatologic Surgery
California Society of Pathologists
California State Council of Service Employees International Union (seiu California)
Center for Professional Recovery
Dr. Lorna Breen Heroes' Foundation
Drug Policy Alliance
Federation of State Physician Health Programs
Medical Board of California
Union of American Physicians and Dentists

Opposition

Consumer Protection Policy Center/USD School of Law

Consumer Attorneys of California (unless amended)

Consumer Watchdog

Disability in Medicine Mutual Mentorship Program

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334

Date of Hearing: April 22, 2025

ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS

1. Marc Berman, Chair

ABPCA Bill Id:AB 408

Author:(Berman) – As Amended Ver:April 21, 2025

NOTE: This bill is double referred and if passed by this Committee will be re-referred to the Assembly Committee on Judiciary.

SUBJECT: Physician Health and Wellness Program.

SUMMARY: Revises the authority of the Medical Board of California (MBC) to establish a Physician Health and Wellness Program to enable the program to align with national best practices for helping physicians with substance use disorders and other conditions receive treatment so they can continue practicing safely.

EXISTING LAW:

1. Establishes the Department of Consumer Affairs (DCA) within the Business, Consumer Services, and Housing Agency. (Business and Professions Code (BPC) § 100)
2. Enumerates various regulatory boards, bureaus, committees, and commissions under the DCA’s jurisdiction, including healing arts boards under Division 2. (BPC § 101)
3. Establishes a Substance Abuse Coordination Committee within the DCA to formulate uniform standards to be used by healing arts boards in dealing with substance-abusing licensees, including specific standards for the extent to which licensee participation in a private-sector vendor program shall be kept confidential from the public. (BPC § 315)
4. Requires a board to order a licensee to cease practice if the licensee tests positive for any substance that is prohibited under the terms of the licensee’s probation or diversion program. (BPC § 315.2)
5. Authorizes boards to adopt regulations authorizing the board to order a licensee on probation or in a diversion program to cease practice for major violations and when the board orders a licensee to undergo a clinical diagnostic evaluation pursuant to the uniform and specific standards. (BPC § 315.4)
6. Authorizes a licensing agency to order a licensee to be examined by one or more physicians and surgeons or psychologists designated by the agency whenever it appears that any person holding a healing arts license, certificate, or permit may be unable to practice their profession safely because the licensee’s ability to practice is impaired due to mental illness, or physical illness affecting competency. (BPC § 820)
7. Enacts the Medical Practice Act, which provides for the licensure and regulation of physicians and surgeons. (BPC §§ 2000 et seq.)
8. Establishes the MBC within the DCA, a regulatory board comprised of 15 appointed members, including five public members and eight physician members appointed by the Governor, one public member appointed by the Senate Committee on Rules, and one public member appointed by the Speaker of the Assembly. (BPC § 2001)
9. Declares that protection of the public shall be the highest priority for the MBC in exercising its licensing, regulatory, and disciplinary functions. (BPC § 2001.1)
10. Entrusts the MBC with responsibility for all of the following:
11. The enforcement of the disciplinary and criminal provisions of the Medical Practice Act.
12. The administration and hearing of disciplinary actions.
13. Carrying out disciplinary actions appropriate to findings made by a panel or an administrative law judge.
14. Suspending, revoking, or limiting certificates after the conclusion of disciplinary actions.
15. Reviewing the quality of medical practice carried out by physician and surgeon certificate holders under the jurisdiction of the board.
16. Approving undergraduate and graduate medical education programs.
17. Approving clinical clerkship and special programs and hospitals.
18. Issuing licenses and certificates under the board’s jurisdiction.
19. Administering the board’s continuing medical education program.
20. (BPC § 2004)
21. Authorizes the MBC to appoint panels of at least four of its members for the purpose of fulfilling its disciplinary obligations, and requires that a majority of the panel members be physicians. (BPC § 2008)
22. Authorizes the MBC to establish advisory committees consisting of physicians in good standing and members of the public with interest or knowledge of a subject matter assigned to the committee, who are not required to be members of the MBC. (BPC § 2015.5)
23. Requires the MBC to keep an official record of all its proceedings. (BPC § 2017)
24. With approval from the Director of DCA, authorizes the MBC to employ an executive director as well as investigators, legal counsel, medical consultants, and other assistance, but provides that the Attorney General is legal counsel for the MBC in any judicial and administrative proceedings. (BPC § 2020)
25. Allows the MBC to select and contract with necessary medical consultants who are licensed physicians to assist it in its programs. (BPC § 2024)
26. Requires the MBC to adopt regulations to require its licensees to provide notice to their clients or patients that the practitioner is licensed in California by the MBC. (BPC § 2026)
27. Requires the MBC to post on its website the current status of its licensees and any prior history of discipline. (BPC § 2027)
28. Prohibits the MBC from requiring an applicant for a physician’s and surgeon’s license or postgraduate training license to disclose either of the following:
29. A condition or disorder that does not impair the applicant’s ability to practice medicine safely.
30. A condition or disorder for which the applicant is receiving appropriate treatment and which, as a result of the treatment, does not impair the applicant’s ability to practice medicine safely, with the exception of an applicant’s participation in a treatment program resulting from an accusation or disciplinary action brought by a licensing board.
31. (BPC § 2090)
32. Authorizes the MBC to take action against persons guilty of violating the Medical Practice Act. (BPC § 2220)
33. Previously required the Director of DCA to appoint an independent enforcement monitor to monitor the MBC’s enforcement efforts, with specific concentration on the handling and processing of complaints and timely application of sanctions or discipline imposed on licensees and persons in order to protect the public. (BPC § 2220.01)
34. Requires the MBC to prioritize its investigative and prosecutorial resources to ensure that physicians representing the greatest threat of harm are identified and disciplined expeditiously, with the following allegations being handled on a priority basis and with the first paragraph receiving the highest priority:
35. Gross negligence, incompetence, or repeated negligent acts that involve death or serious bodily injury to patients, such that the physician represents a danger to the public.
36. Drug or alcohol abuse by a physician involving death or serious bodily injury to a patient.
37. Repeated acts of clearly excessive prescribing, furnishing, or administering of controlled substances, or repeated acts of prescribing, dispensing, or furnishing of controlled substances without a good faith prior examination of the patient and medical reason therefor.
38. Repeated acts of clearly excessive recommending of cannabis to patients for medical purposes, or repeated acts of recommending cannabis to patients for medical purposes without a good faith prior examination of the patient and a medical reason for the recommendation.
39. Sexual misconduct with one or more patients during a course of treatment or an examination.
40. Practicing medicine while under the influence of drugs or alcohol.
41. Repeated acts of clearly excessive prescribing, furnishing, or administering psychotropic medications to a minor without a good faith prior examination of the patient and medical reason therefor.
42. (BPC § 2220.05)
43. Requires that any complaint determined to involve quality of care, before referral to a field office for further investigation, shall be reviewed by a qualified medical expert and shall include the review of the following:
44. Relevant patient records.
45. The statement or explanation of the care and treatment provided by the physician.
46. Any additional expert testimony or literature provided by the physician.
47. Any additional facts or information requested by the medical expert reviewers that may assist them in determining whether there was a departure from the standard of care.
48. (BPC § 2220.08)
49. Clarifies that the MBC is the only licensing board authorized to investigate or commence disciplinary actions relating to the physicians and surgeons it licenses. (BPC § 2220.5)
50. Authorizes the MBC to either deny an application for licensure as a physician and surgeon or issue a probationary license, subject to specified conditions and limitations. (BPC § 2221)
51. Allows the MBC to delegate its authority to conduct investigations and inspections and to institute proceedings to its executive director or to other personnel. (BPC § 2224)
52. Enacts the Patient's Right to Know Act of 2018 to require certain healing arts licensees, including physicians, who are on probation for certain offenses to provide their patients with information about their probation status prior to the patient’s first visit. (BPC § 2228.1)
53. Provides that all proceedings against a licensee for unprofessional conduct, or against an applicant for licensure for unprofessional conduct or cause, shall be conducted in accordance with the Administrative Procedure Act. (BPC § 2230)
54. Requires the MBC to take action against any licensee who is charged with unprofessional conduct, including, but not limited to, the following:
55. Violations of the Medical Practice Act.
56. Gross negligence.
57. Repeated negligent acts.
58. Incompetence.
59. Acts of dishonesty or corruption that are substantially related to the practice of medicine.
60. Any action or conduct that would have warranted the denial of a certificate.
61. Failure to attend and participate in an interview by the MBC.
62. (BPC § 2234)
63. Provides that the conviction of any offense substantially related to the qualifications, functions, or duties of a physician constitutes unprofessional conduct. (BPC § 2236)
64. Automatically suspends a physician’s license during any time that the physician is incarcerated after conviction of a felony. (BPC § 2236.1)
65. Provides that numerous inappropriate activities or violations of the law constitute unprofessional conduct. (BPC §§ 2237 – 2318)
66. Provides that a physician who uses, prescribes for, or administering to themselves any controlled substance or dangerous drug or alcoholic beverages, to the extent or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely has committed unprofessional conduct. (BPC § 2239)
67. Requires the MBC to set as a goal the improvement of its disciplinary system so that an average of no more than six months will elapse from the receipt of complaint to the completion of an investigation. (BPC § 2319)
68. Authorizes the MBC to establish a Physician and Surgeon Health and Wellness Program for the early identification of, and appropriate interventions to support a physician and surgeon in their rehabilitation from, their substance use to ensure that the physician and surgeon remains able to practice medicine in a manner that will not endanger the public health and safety and that will maintain the integrity of the medical profession; if established, the program shall aid a physician and surgeon with substance abuse issues impacting their ability to practice medicine. (BPC § 2340)
69. Requires, if the MBC establishes a Physician and Surgeon Health and Wellness Program, for the program to do all of the following:
70. Provide for the education of all licensed physicians and surgeons with respect to the recognition and prevention of physical, emotional, and psychological problems.
71. Offer assistance to a physician and surgeon in identifying substance abuse problems.
72. Evaluate the extent of substance abuse problems and refer the physician and surgeon to the appropriate treatment by executing a written agreement with a physician and surgeon participant.
73. Provide for the confidential participation by a physician and surgeon with substance abuse issues who does not have a restriction on his or her practice related to those substance abuse issues; if an investigation of a physician and surgeon occurs after the physician and surgeon has enrolled in the program, the board may inquire of the program whether the physician and surgeon is enrolled in the program and the program shall respond accordingly.
74. Comply with the Uniform Standards Regarding Substance-Abusing Healing Arts Licensees as adopted by the Substance Abuse Coordination Committee of the DCA.
75. (BPC § 2340.2)
76. Requires the MBC, if it establishes a Physician and Surgeon Health and Wellness Program, to contract for the program’s administration with a private third-party independent administering entity that meets specified qualifications, pursuant to a request for proposals. (BPC § 2340.4)
77. Requires a physician and surgeon to enter into an individual agreement with the Physician and Surgeon Health and Wellness Program and agree to pay expenses related to treatment, monitoring, laboratory tests, and other activities specified in the participant’s written agreement as a condition of participation in the program. (BPC § 2340.6)
78. Establishes the Physician and Surgeon Health and Wellness Program Account within the Contingent Fund of the MBC and provides that any fees collected by the MBC through the Physician and Surgeon Health and Wellness Program shall be deposited in that account. (BPC § 2340.8)
79. Authorizes the MBC’s Division of Licensing to prepare and provide electronically or mail to every licensed physician at the time of license renewal a questionnaire containing any questions as are necessary to establish that the physician currently has no disorder that would impair the physician’s ability to practice medicine safely. (BPC § 2425)

THIS BILL:

1. Repeals current law authorizing the MBC to establish a Physician and Surgeon Health and Wellness Program for physicians and surgeons with substance abuse issues.
2. Reestablishes the MBC’s authority to establish a Physician and Surgeon Health and Wellness Program and broadens eligibility for participation in the program to include not only physicians and surgeons but also allied health care professionals licensed by the MBC, applicants, prospective applicants, trainees, and students.
3. Broadens the scope of the Physician and Surgeon Health and Wellness Program to provide assistance for individuals struggling with any impairing or potentially impairing physical or mental health conditions, including but not limited to substance use disorders.
4. Authorizes the MBC to establish one or more advisory committees to assist it in carrying out its duties related to the Physician Health and Wellness Program, as specified.
5. Provides that a Physician and Surgeon Health and Wellness Program established by the MBC shall do all of the following:
6. Educate the public, licensees, applicants, prospective applicants, trainees, students, health facilities, medical groups, health care service plans, health insurers, and other relevant organizations on specified topics relating to the program.
7. Enter into relationships supportive of the program with professionals experienced in working with health care providers to provide education, evaluation, monitoring, or treatment services.
8. Receive and assess reports of suspected impairment from any source.
9. Intervene in cases of verified impairment or suspected impairment, as well as in cases where the individual has a condition that could lead to impairment if left untreated.
10. Upon reasonable cause, refer participants for evaluation, treatment, monitoring, or other appropriate services.
11. Provide consistent and regular monitoring, care management support, or other appropriate services for program participants.
12. Advocate on behalf of participants, with their consent, to the MBC to allow them to participate in the program as an alternative to disciplinary action, when appropriate.
13. Offer guidance on participants’ fitness for duty with current or potential workplaces, when appropriate.
14. Perform other services as agreed between the program and the MBC.
15. Exempts voluntary participants in the Physician Health and Wellness Program from the requirements of the Uniform Standards Regarding Substance-Abusing Healing Arts Licensees.
16. Requires participants on probation to comply with the terms of that probation, including a probation order imposing the Uniform Standards, and requires the Physician Health and Wellness Program to provide any required evaluations, treatment, monitoring, and reports to the MBC consistent with the participant’s order of probation.
17. Authorizes the MBC to refer a licensee to the Physician Health and Wellness Program in lieu of disciplinary action if the MBC determines that the unprofessional conduct may be the result of an impairing or potentially impairing condition; however, prohibits referral to the program in lieu of disciplinary action if the unprofessional conduct involves allegations of patient or client harm or sexual misconduct with a patient, client, or any other person.
18. Requires the MBC to obtain the consent of the licensee prior to referring the licensee to the Physician Health and Wellness Program in lieu of disciplinary action, and provides that if the licensee does not consent or does not successfully complete the program, the MBC may take appropriate disciplinary action.
19. Authorizes the MBC to enter into a multiyear contract with an administering entity without having to obtain the approval of the Department of General Services, the Office of Legal Services, or any other state entity to justify a multiyear term.
20. Requires the administering entity to have expertise and experience in the areas of impairment and rehabilitation in health care providers and requires the leadership of the administering entity to have at least one medical director, who is specially trained or board certified in addiction medicine or addiction psychiatry and has expertise in health programs for health care providers.
21. Requires all evaluation, monitoring, and treatment to be conducted by providers with expertise in working with health care professionals with impairing or potentially impairing conditions approved by the administering entity or the MBC.
22. Provides that the administering entity shall do all of the following in its administration of the Physician Health and Wellness Program:
23. Identify and use a national treatment resource network that includes in-person and telehealth evaluations, treatment programs, and support groups and shall establish a process for evaluating the effectiveness of those resources and programs.
24. Identify other individuals affiliated with the participant who would benefit from counseling and may refer them to services appropriate for the circumstances.
25. Make the program services available to all MBC licensees, applicants, prospective applicants, trainees, and students.
26. Make prompt and diligent efforts to contact and conduct an appropriate assessment and referral for an independent evaluation, when indicated, with each licensee, applicant, prospective applicant, trainee, and student who has been referred to the program.
27. Attempt to enroll the referred individual if, in the good faith judgment of the administering entity, the individual has a condition that impairs or may impair their ability to practice their profession in a reasonably safe, competent, and professional manner.
28. Implement an MBC-approved system for immediately and confidentially reporting a participant to the MBC when required, including, but not limited to, a participant who withdraws or is terminated from the program prior to completion;
29. Provide regular communication to the MBC through participation in board meetings, annual reports, and other specified reporting at regular intervals or upon request.
30. Requires a contract entered into between the MBC and the administering entity to include procedures on the following topics:
31. Regular participation at board meetings and reporting of statistical information related to the program and participants.
32. Periodic disclosure and joint review of information the board may deem appropriate regarding referrals, including the contacts, evaluations, and investigations made, and the disposition of each referral.
33. Immediate reporting to the board the name, last known contact information, and a factual summary of events and findings regarding any suspected or verified impaired licensee, applicant, or trainee practicing during the exemption period who, in the opinion of the administering entity, is probably an imminent danger to the public.
34. Timely reporting to the MBC the name, last known contact information, and a factual summary of events and findings regarding any suspected or verified impaired participant who fails to cooperate with the program, fails to submit to an evaluation, treatment, or monitoring, or whose impairment is not substantially alleviated through treatment, or who, in the opinion of the administering entity, is probably unable to practice their profession in a reasonably safe, competent, and professional manner.
35. Timely reporting to the MBC, when required, for the MBC’s evaluation and direction, deidentified voluntary participants who commit a program violation; after consulting with the administering entity, if the MBC requests that the individual be identified, the administering entity shall provide to the MBC the name, last known contact information, and a factual summary of events and findings relating to the individual’s participation.
36. Informing each participant of the program procedures, the responsibilities of participants, and the possible consequences of noncompliance with the program.
37. Qualifications and requirements for individuals and entities providing services to participants, including, but not limited to, treatment facilities, evaluators, testing locations, laboratories, treatment providers, support group facilitators, and monitors.
38. Quality assurance and quality improvement principles.
39. Confidentiality and maintenance of program records.
40. Identification of the full names and qualifications of program staff who are available to certify records regarding individuals participating pursuant to an order of probation and be the person most knowledgeable to explain the program’s records, if needed.
41. Standardized data collection to allow for data analysis and research.
42. Research processes and methodologies.
43. Education and outreach to stakeholders.
44. Interstate monitoring to support communication and accountability of program participants across jurisdictions.
45. Notification of required program evaluations, compliance with those evaluations, and opportunities to cure deficiencies identified in those evaluations.
46. Any other topic pertinent to the program as determined by the MBC.
47. Requires participants in the Physician Health and Wellness Program to enter into an individual agreement with the program that includes all of the following, as applicable:
48. A jointly agreed-upon plan and mandatory conditions and procedures for monitoring of compliance with the program.
49. Criteria for compliance with terms and conditions of evaluation, treatment, or monitoring.
50. Criteria for program completion.
51. Criteria for termination from the program.
52. Criteria for when the administering entity will report a participant to the MBC for noncompliance with the program requirements.
53. Agreement to maintain an active release authorizing communication between the program and the board, and other entities and individuals as required by the program.
54. Acknowledgment that the administering entity is required to report to the board the participant’s withdrawal or termination before completion of program requirements or if the administering entity determines that the participant is unable to practice their profession in a reasonably safe, competent, and professional manner.
55. Acknowledgment that the report is required to include the participant’s name, last known contact information, and a factual summary of events and findings relating to the individual’s participation in the program.
56. Acknowledgment that participation in the program shall not be a defense to any disciplinary or licensing action that may be taken by the board.
57. Acknowledgment that expenses related to evaluation, treatment, monitoring, laboratory tests, and other activities specified by the program shall be paid by the participant or other sources available to the participant.
58. Provides that the cost of evaluation and treatment shall be the sole responsibility of program participants, and this responsibility does not preclude payment by an employer, insurer, or other sources.
59. Continues the existence of the Physician Health and Wellness Program Account within the MBC’s Contingent Fund and authorizes the MBC to seek and use grant funds and gifts of financial support from public or private sources to pay any cost associated with the program.
60. Provides that specified program records and correspondence relating to program participants are investigatory or security files compiled for licensing purposes, and are therefore exempt from the California Public Records Act and not subject to discovery by subpoena or admissible as evidence except as provided.
61. Provides for immunity from civil liability for individuals who report information or take in action in relation to the Physician Health and Wellness Program, except when it can be proven that a person made a false report and either knew that the report was false, or made the report with reckless disregard of the truth or falsity of the report.
62. Requires licensees of the MBC to report to the administering entity or the MBC, the name and current contact information of another licensee if they, in their good faith judgment, believe that the other licensee may be impaired.
63. Exempts program staff and agents are exempt from this reporting mandate when the licensee is compliant with program requirements and does not pose a risk to patient safety.
64. Prohibits the administering entity or MBC from disclosing the name of the referring individual to the referred licensee under any circumstances, except with the express written permission of the referring individual, or if otherwise required by law.
65. Clarifies that nothing in the bill applies to the Osteopathic Medical Board of California.

FISCAL EFFECT: Unknown; this bill is keyed fiscal by the Legislative Counsel.

COMMENTS:

Purpose. This bill is sponsored by the Medical Board of California. According to the author:

When our physicians struggle with substance use disorders, it is in the best interest of both patients and physicians to support them in seeking out help. AB 408 builds off California’s longstanding efforts to destigmatize seeking treatment for substance use disorders. This bill is fundamentally about patient safety. Today, physicians struggling with substance use disorders can feel pressure to hide their condition and often never get the help they need. The creation of this program will help healthcare providers get the care they need, which will better protect patients in the end.

Background.

Medical Board of California. The MBC is primarily responsible for licensing and regulating physicians and surgeons, whose certificates authorize the plenary practice of all recognized fields of medicine. The MBC also has jurisdiction over special program registrants and organizations and special faculty permits, which allow those who are not MBC licensees but who meet certain licensure exemption criteria to perform duties in specified settings. The MBC also has authority over licensed midwives, medical assistants, and registered polysomnographic professionals. The MBC additionally approves accreditation agencies that accredit outpatient surgery settings and issues fictitious name permits to physicians practicing under a name other than their own.

Efforts to Address Physician Wellness and Burnout. Discussions have long persisted around how to support the mental and physical well-being of California’s frontline health workers, including physicians. National studies have concluded that a significant percentage of physicians meet the diagnostic criteria for substance abuse or dependence compared to the general population.^[1] The increased prevalence of substance use disorders among physicians has been associated with the high-stress work environment of medical practice, access to prescription medications, and cultural factors that stigmatize mental health issues and discourage seeking care.^[2]

During the MBC’s most recent sunset review, the background paper published by the Assembly Committee on Business and Professions and the Senate Committee on Business, Professions, and Economic Development raised the following issue: “Under ordinary circumstances, frontline healthcare providers and first responders often face difficult situations that are mentally and emotionally challenging. Are there new issues arising from, or ongoing issues being worsened by, the extreme conditions of the COVID-19 pandemic?”

In recognition of these concerns, the MBC’s most recent sunset bill made changes to statute authorizing the MBC to require physicians to respond to a questionnaire intended to confirm that the physician “currently has no mental, physical, emotional, or behavioral disorder that would impair the physician’s ability to practice medicine safely.” Further changes were made in 2024 to further restrict the MBC’s authority to require applicants and licensees to self-disclose conditions or disorders that do not impair their ability to practice medicine safely, including disorders for which they are receiving appropriate treatment.

Physician Health and Wellness Program. One effective mechanism for addressing substance use disorders within the medical profession is the use of programs for identifying, treating, and monitoring practitioners struggling with addiction or other potential impairments. The first such program in California was established in 1979 through legislation co-sponsored by the MBC (then known as the Board of Medical Quality Assurance) and the California Medical Association. The MBC’s original Diversion Program was intended to facilitate the rehabilitation of physicians suffering from drug or alcohol abuse while allowing them to continue practicing medicine under a treatment program, which could be customized to include specific safeguards such as practice monitors and regular drug and alcohol testing. Physicians who failed to comply with their individual treatment plan would face license suspension or would be otherwise referred to the MBC’s enforcement program for discipline.

Concerns were raised regarding the MBC’s Diversion Program shortly following its implementation. In August 1982, the California State Auditor released a report on the MBC which found that participants in the program were not adequately monitored for compliance with their treatment plans. In January 1985, the California State Auditor released a subsequent report finding that “the state’s diversion programs do not adequately protect the public from health professionals who suffer from alcoholism or drug abuse.” The report concluded:

The diversion program of the [MBC] does not protect the public while it rehabilitates physicians who suffer from alcoholism or drug abuse. Compliance officers are not visiting participants and collecting urine samples as frequently as the program requires, some participants do not have practice monitors as required, and practice monitors are not performing all their required duties. Moreover, the program manager is not exercising his authority over participants who do not comply with their treatment programs.

The audit report included several recommendations to improve the MBC’s Diversion Program. In June 1986, the California State Auditor released a follow-up report declaring that the MBC had “made progress in improving its diversion program” but that “some problems remain.” This report acknowledged that the MBC had taken steps to ensure that participants sign agreements allowing the diversion program manager to effectively evaluate whether the participant is complying with the program requirements and able to practice medicine safely. However, the audit still raised concerns that physicians in the program were not sufficiently subjected to routine monitoring.

During the MBC’s sunset review in 2002, the Joint Legislative Sunset Review Committee discussed public criticism of the MBC’s enforcement program, including several high-profile news reports of patient harm by physicians who were allowed to practice despite being impaired by substance use disorder. In response, the MBC’s sunset bill required the Director of Consumer Affairs to appoint a Medical Board Enforcement Program Monitor to “monitor and evaluate the disciplinary system and procedures of the board, making as his or her highest priority the reform and reengineering of the board’s enforcement program and operations and the improvement of the overall efficiency of the board’s disciplinary system.” The MBC’s sunset bill further required the Enforcement Monitor to submit reports to the Legislature, including a requirement that the Enforcement Monitor “evaluate the effectiveness and efficiency of the board’s diversion program and make recommendations regarding the continuation of the program and any changes or reforms required to assure that physicians and surgeons participating in the program are appropriately monitored and the public is protected from physicians and surgeons who are impaired due to alcohol or drug abuse or mental or physical illness.”

In November 2004, the Enforcement Monitor submitted their initial report to the Legislature, which included a chapter specifically focused on the MBC’s Diversion Program. The report discussed how the program was operated, noting that it functioned as a monitoring program rather than a treatment program, as the Diversion Program itself did not provide substance abuse treatment, but rather sought to confirm active participation in a treatment program as part of the MBC’s oversight of the licensee. The report cited the three prior audits that had found deficiencies in the program and questioned whether the MBC’s administration of its Diversion Program was consistent with its statutory mandate to prioritize protection of the public.

The Enforcement Monitor’s final report, transmitted in November 2005, acknowledged that “the Board’s Diversion Program has undergone a dramatic change in management and direction with the stated intent of ‘reconstructing’ the program to better protect the public, and significant operational improvements have been implemented despite continuing resource shortages.” However, the Enforcement Monitor continued to raise “threshold issues” about whether the Diversion Program should be continued and whether it should be administered by the MBC, rather than through a contract with a third party. The Enforcement Monitor’s report reflected both technical challenges within the program as well as philosophical misgivings about the program’s overall framework.

In 2005, the MBC’s sunset bill was amended to require an additional audit of the MBC’s Diversion Program, with the program scheduled to sunset on January 1, 2009 unless extended. In June 2007, the California State Auditor released its report, which found that many of the Enforcement Monitor’s recommendations had not been implemented and that the program still struggled to sufficiently monitor licensee participation and take action for violations of a participant’s treatment plan. In response to this final audit, the MBC voted at its July 2007 meeting to abolish its Diversion Program, which was formally repealed on July 1, 2008.

Following the dissolution of the MBC’s Diversion Program in 2008, the Legislature enacted Senate Bill 1441 (Ridley-Thomas), sponsored by the Center for Public Interest Law, whose Administrative Director had served as the MBC’s Enforcement Monitor. Senate Bill 1441 established the Substance Abuse Coordination Committee within the DCA to formulate “consistent and uniform standards and best practices in dealing with substance-abusing licensees.” This included 16 specific standards each healing arts board would be required to use in dealing with substance-abusing licensees, with or without a formal diversion program.

The intent of Senate Bill 1441 was to standardize programs seeking to rehabilitate health care licensees struggling with substance use problems across all of DCA’s healing arts boards. The bill was intended to “continue a measure of self-governance,” with committee analysis noting that “the standards for dealing with substance-abusing licensees determined by the commission set a floor, and boards are permitted to establish regulations above these levels.” However, Senate Bill 1441 required any initiative by a healing arts board resembling the creation of a diversion program to comply with each of the requirements contained in the Uniform Standards Regarding Substance-Abusing Healing Arts Licensees.

Several legislative attempts to reestablish a program for physicians struggling with substance abuse were subsequently introduced. In 2008, the Legislature passed Assembly Bill 214 (Fuentes), which would have established a Physician Health Program within the Department of Public Health. Governor Schwarzenegger vetoed this bill with a message stating that “separating the operation of such programs from the Medical Board of California is inappropriate.” Subsequently in 2009, Assembly Bill 526 (Fuentes) sought to establish a voluntary Physician Health Program within the State and Consumer Services Agency; this bill died on suspense in the Senate. In 2012, Senate Bill 1483 (Steinberg) was introduced to create a Physician Health Program administered by a committee within the DCA; this bill died on the inactive file in the Assembly. Assembly Bill 2346 (Gonzalez) of 2014 would have authorized MBC to contract with a third party to establish a voluntary Physician Health Program, but this bill died on suspense in the Assembly.

In 2016, the California Medical Association sponsored Senate Bill 1177 (Galgiani) to authorize the MBC to establish a Physician Health and Wellness Program for the early identification of, and appropriate interventions to support a physician and surgeon in their rehabilitation from substance abuse. The MBC had stated during its October 2015 meeting that it believed any program for physicians would have to comply with the DCA’s Uniform Standards Regarding Substance-Abusing Healing Arts Licensees, and the bill specifically required the program to comply with those requirements. The bill was signed into law by Governor Brown, finally recodifying the authority for the MBC to establish a program for substance abusing physicians.

The MBC began its formal rulemaking process to implement Senate Bill 1177 shortly after Senate Bill 1177 was signed, voting in October 2016 to hold interested parties meetings in 2017 to obtain input on potential regulatory language. In October 2017, the MBC voted to move forward with noticing proposed regulations for a 45-day comment period and hearing; however, while this was underway, the Substance Abuse Coordination Committee within the DCA announced that it was meeting to make changes to the Uniform Standards, resulting in a pause in the MBC’s rulemaking. In November 2019, the MBC voted to move forward with a modified regulatory proposal, which was submitted to the DCA; two years later, the MBC voted once again to move forward with another revised version of its regulations, which were formally noticed for public comment in September 2023.

After receiving public comments through November 2023, the MBC reviewed what it has described as “thoughtful feedback from stakeholders and experts who raised valid concerns about the effectiveness of our proposal and its potential unintended consequences.” Specifically, the MBC determined that the Physician Health and Wellness Program authorized by Senate Bill 1177 would not align with national best practices for encouraging participation and achieving successful outcomes. One specific concern was that Senate Bill 1177 would still require the MBC’s program to comply with the Uniform Standards, which would require the board to disclose information to the public on licensees participating in the program “regardless of whether the licensee is a self-referral or a board referral.” Concerns were raised that this would only serve to further stigmatize practitioners who seek care for disorders and disincentivize those who would otherwise consider voluntarily entering a program.

In response to these concerns, the MBC voted to withdraw its proposed regulations and instead move forward with legislation to revise its authority to establish a Physician Health and Wellness Program to allow it to implement a program that aligns with best practices. This bill, sponsored by the MBC, would make several important changes to the MBC’s existing authority. First, it would provide that the Uniform Standards would not be mandated on any individual who is participating in the Physician Health and Wellness Program voluntarily. This would allow for that participation to occur confidentially, just as it would be were the individual to participate in any other treatment program not currently affiliated with a licensing board.

This bill would also expand eligibility to participate in the Physician Health and Wellness Program to include not just physicians, but also other professionals overseen by the MBC, such as licensed midwives or registered polysomnographic professionals, as well as license applicants and medical students. Under this bill, the program would also be broadened to include any impairing or potentially impairing physical or mental health conditions, which would include substance use disorders but could also include other conditions commonly associated with physician stress and burnout. The bill would also streamline the MBC’s ability to enter into multi-year contracts with a program administrator, authorize the creation of advisory committees within the MBC, and provide for mandatory reporting by licensees of colleagues believed to have impairing conditions.

Nothing in the bill is intended to change the process for licensees who are required enter into the program as a form of discipline. Further, this bill would not change the requirements for any licensee who is found to have engaged in unprofessional conduct involving allegations of patient or client harm or sexual misconduct with a patient, client, or any other person. While the MBC already has authority to establish a Physician Health and Wellness Program, this bill would arguably enable it to establish a more successful program that can help more individuals receive help with a broader range of disorders while continuing to safely practice medicine.

Current Related Legislation. AB 1130 (Berman) would clarify that any member of the MBC may be removed by the authority that appointed that member for continued neglect of duties required by law, or for incompetence, or unprofessional or dishonorable conduct. This bill is pending in this committee.

Prior Related Legislation. AB 2164 (Berman), Chapter 952, Statutes of 2024 restricted the authority of the MBC to require applicants and licensees to self-disclose conditions or disorders that do not impair their ability to practice medicine safely, including disorders for which they are receiving appropriate treatment.

AB 1130 (Berman), Chapter 21, Statutes of 2023 updated various provisions of code to replace use of the term “addict” with the term “person with substance use disorder.”

SB 815 (Roth), Chapter 294, Statutes of 2023 extended the sunset for the MBC and narrowed the scope of the questions that the MBC may ask of physicians as part of its renewal questionnaire.

SB 1177 (Galgiani), Chapter 591, Statutes of 2016 authorized the MBC to contract with a private third party to allow physicians and surgeons to participate in a Physician Health and Wellness Program to provide treatment for substance abuse disorders.

AB 2346 (Gonzalez) of 2014 would have authorized the MBC to contract with a third party to establish a voluntary Physician Health Program. This bill died on suspense in the Assembly Committee on Appropriations.

SB 1483 (Steinberg) of 2012 would have created the Physician Health, Awareness, and Monitoring Quality Act and established a Physician Health Program within the DCA for physicians, medical students, and medical residents seeking treatment for alcohol or substance abuse, a mental disorder, or other health conditions. This bill died on the inactive file on the Assembly Floor.

AB 526 (Fuentes) of 2009 would have established a voluntary Physician Health Program within the State and Consumer Services Agency to assist physicians and surgeons with alcohol or substance abuse. This bill died on suspense in the Senate Committee on Appropriations.

AB 214 (Fuentes) of 2008 would have established a Physician Health Program within the Department of Public Health to assist physicians and surgeons with alcohol or substance abuse. This bill was vetoed by the Governor.

SB 1441 (Ridley-Thomas), Chapter 548, Statutes of 2008 established the Substance Abuse Coordination Committee in the DCA, tasked with developing uniform standards and controls for programs dealing with substance-abusing healing arts licensees.

AB 2443 (Nakanishi) of 2008 would have required the MBC to establish a program to promote the well-being of physicians and surgeons. This bill was vetoed by the Governor.

SB 231 (Figueroa), Chapter 674, Statutes of 2005 required an audit for the MBC’s Diversion Program and established a January 1, 2009, sunset date for the program.

ARGUMENTS IN SUPPORT:

The Medical Board of California (MBC) is sponsoring this bill. According to the MBC: “Whether due to a substance use disorder, or another mental or physical health condition, impaired healthcare providers can cause devastating harm to the public. AB 408 authorizes the Board to establish a physician health and wellness program (program) that will coordinate treatment and monitoring services for the Board’s current and future licensees consistent with national best practices so that they can get the help they need to stay healthy and provide the high-quality care that patients deserve. This proposal also includes reporting requirements so that the program and/or Board is aware of its licensees who are unsafe to practice, authorizes program quality and compliance evaluations, and requires public disclosure of various program statistics.”

The California Medical Association (CMA) supports this bill, writing: “This bill will authorize a physician health program (PHP) that aligns with national best practices. PHPs that incorporate these best practices provide a proactive approach to address health issues that may result in impairment. Establishing one would enable the Medical Board of California (MBC) to prevent patient harm by connecting impaired or at-risk physicians with treatment before issues arise. CMA supports AB 408 because it creates the framework for an effective, confidential program – similar to those in other states – that supports physicians’ health and wellness and protects patients by allowing physicians to be at their best.”

ARGUMENTS IN OPPOSITION:

The Consumer Protection Policy Center (CPPC) opposes this bill, writing: “CPPC urges the Legislature to reject the proposed PHWP legislation and instead encourage MBC to focus on matters that truly and appropriately concern the legitimate regulatory functions of MBC. When MBC seeks to create a rehabilitation program, it is the Board’s burden to ensure that patients are protected above all else. This Board previously rejected similar PHWP proposal in the form of rulemaking and there are identical similarities to this new proposed PHWP legislation. There is no need for MBC to be concerned in physician and doctor rehabilitation in light of the Board’s enforcement obligations.”

Consumer Watchdog also opposes this bill, writing: “AB 408 would create a drug and alcohol diversion program run by the Medical Board of California so doctors with abuse problems could be sent into rehab in lieu of board disciplinary action. The bill would replicate the problems with the Medical Board’s prior diversion program that allowed repeat offender doctors to evade discipline by entering the program, fail, and keep practicing, placing patients at risk.”

REGISTERED SUPPORT:

Medical Board of California (Sponsor)

American College of Obstetricians & Gynecologists – District IX

California Academy of Child and Adolescent Psychiatry

California Dental Association

California Medical Association

California Orthopedic Association

California Public Protection & Physician Health

California Society of Addiction Medicine

California Society of Anesthesiologists

California Society of Dermatology & Dermatologic Surgery

California Society of Pathologists

Center for Professional Recovery

Drug Policy Alliance

Federation of State Physician Health Programs

SEIU California

4 Individuals

REGISTERED OPPOSITION:

Consumer Protection Policy Center

Consumer Watchdog

2 Individuals

Analysis Prepared by: Robert Sumner / B. & P. / (916) 319-3301

1. Oreskovich, Michael R. et al. “The prevalence of substance use disorders in American physicians.” The American journal on addictions vol. 24,1 (2015). ↑

2. Hughes, P. H. et al. “Prevalence of substance use among US physicians.” JAMA vol. 267,17 (1992). ↑