Guidance from the California Medical Association (CMA), the California Society of Addiction Medicine (CSAM), and the California Psychiatric Association (CPA) for addressing the responsibilities of hospital medical staffs and well-being committees as a result of the closure.

What you must know. With the action of the Medical Board of California (MBC) on November 2, 2007, the Physician Diversion Program is no longer accepting self-referrals (anything other than a referral from the MBC itself is considered a self-referral) and will be closed on June 30, 2008. A coalition of physician organizations is working on a legislatively mandated, independent comprehensive statewide program to replace the Diversion Program, but there will be a gap in services. This document is intended to help well-being committees to bridge this gap.

Here is what the MBC will do for the physicians currently in the Diversion Program, according to their new transition policy:

SELF-REFERRALS & THOSE REFERRED IN LIEU OF DISCIPLINE: 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.

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 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 this knowledge or continue through the enforcement process.

Those individuals who are either self-referrals or those individuals who are in the Program in lieu of discipline 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.

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.

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 (at the MBC) 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 drug screenings. Failure to enroll into another program or abstain from drugs/alcohol may subject him or her to discipline by the Board.

BOARD-ORDERED (DISCIPLINARY ORDER): The MBC 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.

On July 1, 2008 participation in the Diversion Program as part of 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 may state that the probationer must abstain from drugs/alcohol, must submit to biological fluid testing, and must continue in treatment if that had been ordered previously. 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.

OUT-OF-STATE: 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.

It is critical for patient safety that Hospitals and County Medical Societies engage their Physician Well-Being Committees (PWBC) to ensure there is an opportunity to identify doctors with problems early, and get them the monitoring and treatment necessary to protect patients. Well-Being Committees identify doctors with potential problems, ensuring they are monitored and get the treatment they need to practice safely. Strong monitoring paired with confidential treatment provides the best possible opportunity to protect the public and to ensure that doctors with problems have a path to get the help they need. Ignoring the problem will expose patients to increased risk from doctors with addiction problems.

Here are suggestions and recommendations from CMA and CSAM for actions you should take now to respond to the dissolution of the Diversion Program.

(The information provided below is designed to help you cope with the closure of the MBC Physician Diversion Program. The information, however, is not legal advice—the application of law to an individual’s specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend that individuals consult legal counsel if they want professional assurance that our information, and their interpretation of it, is appropriate to their particular situation.)

First, take stock. Review the status of any persons you have referred to the MBC Diversion Program. Also, review any local or community-based resources you have available to assess, evaluate, treat and monitor impaired professionals.

For individuals who have successfully completed the Diversion program, including those with at least three years of sobriety who have either self-referred or have been referred to the MBC Diversion Program in lieu of discipline, you may not need to do anything. The MBC Diversion Program will have provided them an evaluation prior to their discharge with recommendations for their continuing care. It may be prudent for your PWBC to meet with these Diversion Program graduates to review their plans and provide support if needed.

Individuals with less than three years of sobriety who have either self-referred or have been referred to the MBC Diversion Program in lieu of discipline, may receive recommendations or requirements from the MBC to continue in a monitoring and treatment program as a condition of licensure. While arrangement of this monitoring program is not the sole responsibility of hospitals or county PWBCs, you may be ethically or legally responsible to assure that these physicians continue to practice safely. To assure physician safety hospitals should be actively involved in these individuals monitoring either through collaboration with an outside monitoring program or direct supervision by the Hospital PWBC.

Many hospitals that wish to provide monitoring do not have the appropriate resources. If your hospital or county medical society wishes to provide monitoring, possible options include 1) contract with a private monitoring service, 2) engage a structured drug rehabilitation or treatment program with outpatient monitoring or 3) organize a coalition of nearby hospitals and county medical societies to develop local monitoring services.

At a minimum we recommend that each physician under monitoring should 1) have an identified therapist, addiction medicine physician or psychiatrist who specializes in the treatment of drug and alcohol dependence, 2) receive urine drug testing and 3) attend recovery meetings regularly. Physician compliance with these minimum monitoring standards should be assessed by your PWBC, who should request and review regular reports from treating providers and the physician.

If you have any questions about setting up or initiating a monitoring arrangement, call the CMA Confidential Line: (650) 756-7787 (Northern California) or (213) 383-2691 (Southern California) for information, referral or consultation. You can also review the CMA Guidelines for Physician Well-Being Committee Policies and Procedures (available from CMA on line book store at www.cmanet.org) to be sure that the basic foundation of your committee’s procedures is solid and defensible.