2007 California Business and Professions Code Article 14. Diversion Evaluation Committees

CA Codes (bpc:2340-2358)

BUSINESS AND PROFESSIONS CODE
SECTION 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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