California Society of Addiction Medicine / Medical Board Proposed Policy for Diversion Program Transition

Medical Board Proposed Policy for Diversion Program Transition

The following is a redacted version of the proposed policy, which was approved with small modifications. (see http://www.mbc.ca.gov/meetings_materials_2007_11-01_diversion.pdf)

SELF REFERRALS

POLICY: Effective upon approval, the Board will inform individuals requesting participation in the Diversion Program that the program will be eliminated on June 30,2008 and therefore the individual will need to seek participation in another monitoring treatment program.

Information regarding other programs may be available via the Board's Web site.

Rationale: The Board cannot maintain its current program with a limited number of staff. Additionally, with the Diversion Program ending on June 30,2008, it would not be substantially beneficial for these individuals to enter the program. Hence, physicians seeking to voluntarily enter the Diversion Program will be denied participation due to insufficient resources.

PROPOSED POLICY: Beginning immediately following the Board meeting and ongoing to June 30,2008, those individuals who are self referrals and have at least three years of sobriety will be referred to a Diversion Evaluation Committee (DEC) for evaluation. If the DEC recommends, and the Program Administrator agrees, that the individual has been in compliance, the individual will be deemed to have completed the Diversion Program and will receive a letter informing them of such. The letter also will recommend that if the participant believes he/she needs assistance to maintain his/her sobriety that he/she seek entrance into another monitoring program. [As of September 21,2007 there were 44 participants in this category.]

Rationale: Pursuant to Business and Professions (B&P) Code section 2350, three years sobriety and adoption of a lifestyle which will maintain a state of sobriety is to be used to determine completion of the program. In addition, as the Diversion Program continues to lose staff, this mechanism will assist in keeping the caseload down for each monitor.

PROPOSED POLICY: On June 30,2008 those individuals who are self referrals but have less than three years sobriety will be sent a letter stating the Diversion Program is inoperative and there is no longer a monitoring program. The letter will highly encourage participants to seek entrance into another monitoring or treatment program that will assist him or her in maintaining his or her sobriety. [As of September 21,2007 there were 3 1 participants in this category.] Those participants deemed not to be a danger to the public will be released. Those who are deemed a danger Will be reported to enforcement.

Rationale: The Diversion Program will no longer be in existence after June 30, 2008 and will no longer be able to monitor these individuals.But the board believes those deemed to present a danger must be reported. Questions were raised as to the legality of this recommendation, since self referral contracts allow reporting only for failure to comply with the program.

IN LIEU OF DISCIPLINE (STATEMENTS OF UNDERSTANDING)

PROPOSED POLICY: Effective upon approval, the Board will inform those individuals seeking admission to the Diversion Program in lieu of discipline that they will be unable to complete the three year term of sobriety necessary for successful completion of the Diversion Program and therefore any contract signed would be limited to a term ending June 30,2008, the date on which the program becomes inoperative. At that time, the Board will refer the matter to the Attorney General's office for further action. The participant will be made fully aware of this fact and be given the choice of either entering the program with the knowledge that on June 30, 2008 he or she will be referred to enforcement for further action, or that he or she can proceed through the enforcement process.

Rationale: While the Board cannot deny participation in the Program in lieu of discipline as long as the Program is still legally in operation (pursuant to B&P Code section 2350), it also should not encourage participants to enter a program that will only be operational until June 30, 2008. With the knowledge that the program will be inoperable, it would not show good faith to have a physician enter the program only for seven months.

PROPOSED POLICY: Upon approval and ongoing to June 30,2008 those individuals who are in the Program in lieu of discipline and have had at least three years of sobriety will be referred to a Diversion Evaluation Committee (DEC) for evaluation. If the DEC recommends, and the Program Administrator agrees, that the individual has been in compliance, the individual will be deemed to have completed the Diversion Program and will receive a letter informing them of such. The letter also will recommend that if the participant believes he/she needs assistance to maintain his/her sobriety that he/she seek entrance into another monitoring program. [currently 60 participants in this category.]

Rationale: Pursuant to Business and Professions (B&P) Code section 2350, three years sobriety and adoption of a lifestyle which will maintain a state of sobriety is to be used to determine completion of the program. In addition, as the Diversion Program loses its staff, this will assist in keeping the caseload down for each monitor.

PROPOSED POLICY: On January 1, 2008, those individuals who are in the Program in lieu of discipline, but have less than three years sobriety, will be sent a letter stating the Diversion Program will be inoperative as of June 30,2008. The letter will further state that the participant must locate another program that will monitor the physician's recovery in order for the Board to honor the "diversion" provision. This other program must meet the requirements/protocols of the Board's current Diversion Program. This other program must be willing to report to the Chief of Enforcement on a regular basis and provide information as to whether or not the individual is complying and be willing to immediately notify the Board of any positive drug screening. The letter will further inform the individual that there is a "zero-tolerance" policy on positive dmg screenings. Failure to enroll into another program or abstain from drugs/alcohol may subject him or her to discipline by the Board. [currently 34 participants in this category.]

Rationale: Since these participants are in the Diversion Program in lieu of discipline, the Board cannot just dissolve the contract as it will do for the self-referrals. These individuals were brought to the attention of the Enforcement Unit and must fit the criteria in B&P Code section 2350 for completion in order to avoid further action by the Board.

BOARD ORDERED (DISCIPLINARY ORDER)

PROPOSED POLICY: Upon approval the Board will not approve a stipulation that requires participation in the Diversion Program as a condition of a disciplinary order or as a condition to issuing a probationary license. Additionally, the Board will send a letter to the Director of the Office of Administrative Hearings requesting that, since the Diversion Program will become inoperable, the Administrative Law Judges (ALJ) no longer order participation in the Diversion Program as a condition of probation either for disciplinary action or for initial probationary licenses. In lieu of a Diversion Program condition, all stipulations1ALJ decisions must contain a condition stating that the probationer must abstain from all drugs/alcohol and must submit to biological fluid testing. New language would state:

[Note: Significant amendments were made to this paragraph and language should not be construed as final-dp]

"Respondent shall immediately submit to biological fluid testing, at respondent's expense, upon request of the Board or its designee. Within 30 calendar days from the effective date of this decision respondent shall, at respondent's expense, contract with a laboratory or service - approved in advance by the Board or its designee - that will conduct random, unannounced, observed, urine testing a minimum of four times each month. The contract shall require results of the urine tests to be transmitted by the laboratory or service directly to Board or its designee within four hours of the results becoming available. Failure to maintain this laboratory or service during the period of probation is a violation of probation. A certified copy of any laboratory test result may be received in evidence in any proceedings between the Board and respondent. Failure to submit to or comply with the time frame for submitting to, or failure to complete the required biological fluid testing, is a violation of probation."

The Board will follow up with a regulatory amendment to codify this change in the disciplinary guidelines.

Rationale: With the Diversion Program becoming inoperative on June 30, 2008 it would not be appropriate for the Board to order a condition of probation that could not be fulfilled.

PROPOSED POLICY: On July 1,2008 the Diversion Program condition in a disciplinary order will become null and void and will no longer be considered a condition of probation. However, the individuals will be required to fully comply with the conditions in their order that state the probationer must abstain from drugs/alcohol and must submit to biological fluid testing.

The individuals will be required to obtain a drug screening service that will provide testing of the participant. Any refusal to submit to testing, failure either to comply with the time frame for the test or to complete the test, or failure to abstain from drugs/alcohol will be grounds to file a petition to revoke probation.

The Board will need to create a staff position that will provide the lab chosen by the participant with random dates to perform drug screening. This staff person will use the previous Random Drug Generator Program (used by the Diversion Program) to identify random dates to test the participant. This staff person will also liaison with the collectors and laboratories to receive notification of whether the individual is complying with the testing and the outcomes of the test.

Each probationer would be notified that strict adherence to these conditions will be required and any positive drug screening may result in further discipline. Additionally, the probationer will be notified that he/she may seek any monitoring/treatment program he chooses in order to remain in compliance with his probationary order.

Rationale: Since there will no longer be a Diversion Program, this condition can no longer be enforced. Additionally, each probationer knows that a condition of his/her probation is the abstinence of drugs/alcohol.

OUT OF STATE

PROPOSED POLICY: The Board will have staff continue to liaison with the other state to ensure these individuals are in compliance with that state's program until completion. Additionally, these participants will be notified that failure to complete the other state's program as required will result in referral of this matter to the Board's Enforcement Unit.

Rationale: The Board does not currently monitor these individuals (except to be in communication with the other state) and this is a very small workload. Because the other state's programs are still operative, it would be appropriate for the Board to remain in contact with this state until the individual completes the other state's program and no further action would be necessary.

[Note: I have removed the proposed policy regarding handling of 821.5 reports, which was amended and requires further legal clarification. See MBC website for proposed policy-dp]