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2007 California Business and Professions Code Article 14. Diversion Evaluation Committees
CA Codes (bpc:2340-2358)
BUSINESS AND PROFESSIONS CODESECTION 2340-2358
2340. It is the intent of the Legislature that the Medical Board of California seek ways and means to identify and rehabilitate physicians and surgeons with impairment due to abuse of dangerous drugs or alcohol, or due to mental illness or physical illness, affecting competency so that physicians and surgeons so afflicted may be treated and returned to the practice of medicine in a manner which will not endanger the public health and safety. 2341. As used in this article: (a) "Division" means the Division of Medical Quality of the Medical Board of California. (b) "Committee" means a diversion evaluation committee created by this article. (c) "Program manager" means the staff manager of the diversion program or his or her designee. 2342. One or more diversion evaluation committees is hereby created in the state to be established by the division. Each committee shall be composed of five persons appointed by the division. Each committee shall have the following composition: (a) Three physicians and surgeons licensed under this chapter. The division in making its appointments shall give consideration to recommendations of medical associations and local medical societies and shall consider, among others, where appropriate, the appointment of physicians and surgeons who have recovered from impairment or who specialize in psychiatry or who have knowledge and expertise in the management of impairment. (b) Two members not licensed as a physician and surgeon. Each person appointed to a committee shall have experience or knowledge in the evaluation or management of persons who are impaired due to alcohol or drug abuse, or due to physical or mental illness. It shall require the affirmative vote of four members of the division to appoint a person to a committee. Each appointment shall be at the pleasure of the division for a term not to exceed four years. In its discretion the division may stagger the terms of the initial members appointed. 2343. (a) Each member of a committee shall receive per diem and expenses as provided in Section 103. (b) The program manager shall account for all expenses and revenues of the diversion program and separately report this information to the board on a quarterly basis. 2344. A committee created under this article operates in an advisory role to the program manager. Three members of a committee, at least one of whom shall be a public member with expertise or experience with the treatment of substance abuse and addiction, shall constitute a quorum for the transaction of business at any meeting. Any recommendation requires the majority vote of the committee. 2345. Each committee shall elect from its membership a chairperson and a vice chairperson. 2346. The division shall administer the provisions of this article. 2350. (a) The division shall establish criteria for the acceptance, denial, or termination of physicians and surgeons in a diversion program. Only those physicians and surgeons who have voluntarily requested diversion treatment and supervision by a committee shall participate in a program. (b) A physician and surgeon under current investigation by the division may request entry into the diversion program by contacting the Chief or Deputy Chief of Enforcement of the Medical Board of California. The Chief or Deputy Chief of Enforcement of the Medical Board of California shall refer the physician and surgeon who requests participation in the diversion program to a committee for evaluation of eligibility, even if the physician and surgeon is currently under investigation by the division, as long as the investigation is based primarily on mental illness or on the self-administration of drugs or alcohol under Section 2239, or the illegal possession, prescription, or nonviolent procurement of drugs for self-administration, and does not involve actual harm to the public or his or her patients. Prior to referring a physician and surgeon to the diversion program, the division may require any physician and surgeon who requests participation under those circumstances, or if there are other violations, to execute a statement of understanding in which the physician and surgeon agrees that violations of this chapter or other statutes that would otherwise be the basis for discipline may nevertheless be prosecuted should the physician and surgeon be terminated from the program for failure to comply with program requirements. (c) Neither acceptance into nor participation in the diversion program shall preclude the division from investigating or continuing to investigate any physician and surgeon for any unprofessional conduct committed before, during, or after participation in the diversion program. (d) Neither acceptance into nor participation in the diversion program shall preclude the division from taking disciplinary action or continuing to take disciplinary action against any physician and surgeon for any unprofessional conduct committed before, during, or after participation in the diversion program, except for conduct that resulted in the physician and surgeon's referral to the diversion program. (e) Any physician and surgeon terminated from the diversion program for failure to comply with program requirements is subject to disciplinary action by the division for acts committed before, during, and after participation in the diversion program. The division shall not be precluded from taking disciplinary action for violations identified in the statement of understanding described in subdivision (b) if a physician and surgeon is terminated from the diversion program for failure to comply with program requirements. The termination of a physician and surgeon who has been referred to the diversion program pursuant to subdivision (b) shall be reported by the program manager to the division. (f) Nothing in this section shall preclude a physician and surgeon who is not the subject of a current investigation from self-referring to the diversion program on a confidential basis. Subdivision (b) shall not apply to a physician and surgeon who applies for the diversion program in accordance with this subdivision. (g) Any physician and surgeon who successfully completes the diversion program shall not be subject to any disciplinary actions by the board for any alleged violation that resulted in referral to the diversion program. (1) Successful completion shall be determined by the program manager and shall include, at a minimum, three years during which the physician and surgeon has remained free from the use of drugs or alcohol and adopted a lifestyle to maintain a state of sobriety. (2) Notwithstanding paragraph (1), with respect to mental illness, successful completion shall be determined by the program manager and shall instead include, at a minimum, three years of mental health stability and treatment compliance and adoption of a lifestyle designed to maintain a state of mental health stability. (h) The division shall establish criteria for the selection of evaluating physicians and surgeons or psychologists who shall examine physicians and surgeons requesting diversion under a program. Any reports made under this article by the evaluating physician and surgeon or psychologist shall constitute an exception to Section 2263 and to Sections 994, 995, 1014, and 1015 of the Evidence Code. (i) The division shall require biannual reports from each committee which shall include, but not be limited to, information concerning the number of cases accepted, denied, or terminated with compliance or noncompliance, and a cost analysis of the program. The Bureau of Medical Statistics may assist the committees in the preparation of the reports. (j) Each physician and surgeon shall sign an agreement that diversion records may be used in disciplinary or criminal proceedings if the physician and surgeon is terminated from the diversion program and one of the following conditions exists: (1) His or her participation in the diversion program is a condition of probation. (2) He or she has a disciplinary action pending or was under investigation at the time of entering the diversion program. (3) A diversion evaluation committee determines that he or she presents a threat to the public health or safety. This agreement shall also authorize the diversion program to exchange information about the physician and surgeon's recovery with a hospital well-being committee or monitor and with the board's licensing program, if appropriate, and to acknowledge, with the physician and surgeon's approval, that he or she is participating in the diversion program. Nothing in this section shall be construed to allow release of alcohol or drug treatment records in violation of federal or state law. In addition, this agreement shall authorize the diversion program, upon recommendation by a diversion evaluation committee, to order the physician and surgeon to be examined by one or more physicians and surgeons designated by the diversion program to determine clinical competency. The failure of the physician and surgeon to comply with this order shall constitute grounds for suspension or revocation of his or her certificate. The board shall develop regulations that provide guidelines for determining when this examination should be ordered. 2351. The committee shall inform each physician and surgeon who requests participation in a program of the procedures followed in the program, of the rights and responsibilities of the physician and surgeon in the program, and of the possible results of noncompliance with the program. 2352. Each committee shall have the following duties and responsibilities: (a) To evaluate those physicians and surgeons who request participation in the program according to the guidelines prescribed by the division and to make recommendations to the program manager. (b) To review those treatment facilities to which physicians and surgeons in a diversion program may be referred and make recommendations to the program manager. (c) To receive and review information concerning a physician and surgeon participating in the program. (d) To call meetings as necessary to consider the requests of physicians and surgeons to participate in a diversion program, and to consider reports regarding physicians and surgeons participating in a program from an administrative physician and surgeon, from a physician and surgeon, or from others. (e) To consider in the case of each physician and surgeon participating in a program whether he or she may with safety continue or resume the practice of medicine and make recommendations to the program manager. (f) To make recommendations to the program manager regarding the terms and conditions of the diversion agreement for each physician and surgeon participating in the program, including treatment, supervision, and monitoring requirements. 2352.1. The program shall provide information to the division as it may prescribe to assist it in evaluating the program, directing the program's operation, or proposing changes to the program. The division shall hold a meeting open to the public, at least annually, for the purpose of reviewing the required data and evaluating the program's operation. 2353. Notwithstanding the provisions of Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code, relating to public meetings, a committee may convene in executive session to consider reports pertaining to any physician and surgeon requesting or participating in a diversion program. A committee shall only convene in executive session to the extent that it is necessary to protect the privacy of such a physician and surgeon. 2354. Each physician and surgeon who requests participation in a diversion program shall agree to cooperate with the treatment and monitoring program designated by the program manager. Any failure to complete successfully a treatment and monitoring program may result in the filing of an accusation for discipline which may include any acts giving rise to the original diversion. 2355. (a) After the program manager has determined that a physician and surgeon has been rehabilitated and the diversion program is completed, the program manager shall purge and destroy all treatment records pertaining to the physician's and surgeon's participation in a diversion program, except as otherwise provided in this section. Notwithstanding Section 156.1, the board shall retain any other information and records that it specifies by regulation. (b) Except as otherwise provided by Section 2350, all board and committee records and records of proceedings pertaining to the treatment of a physician and surgeon in a program shall be kept confidential and are not subject to discovery or subpoena. 2356. The board shall provide for the representation and indemnification of any persons making reports to a committee or the board under this article in any action in accordance with Section 2317. 2358. This article shall become inoperative on July 1, 2008, and, as of January 1, 2009, is repealed, unless a later enacted statute that is enacted before January 1, 2009, deletes or extends the dates on which it becomes inoperative and is repealed.
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