Hospitals will have a clear process for reporting physicians struggling with a substance abuse or mental health disorder once Governor Schwarzenegger signs California Senate Bill 820 into law.
This bill is intended to fill the gap left when the state last year dissolved its physician diversion program, which funneled physicians with substance abuse and mental illness through a structured rehabilitation process. Although the bill only applies to California hospitals, the state is often at the helm of healthcare trends, and other states may develop similar regulations.
"Hospitals are not intentionally doing things wrong, but I think there was a gray area when our diversion program went away and the existing law about reporting was still on the books," says Linda Whitney, chief of legislation for the Medical Board of California.
Whitney adds the Senate Bill is intended to provide hospitals with a clear and early reporting mechanism and protect the public from impaired physicians. "This language is very similar to the language that was in law related to reporting to our diversion program," she says.
Under California's current peer review system, a medical staff peer review committee only alerts the Medical Board of California after it has conducted a full investigation into a physician's conduct and performance, which could take weeks or months. Unless the medical staff peer review committee has summarily suspended a physician for an egregious act, the physician is allowed to continue practicing during the investigation, which some argue poses patient safety—and thus malpractice—risk. The medical staff peer review committee may determine that the physician can continue practicing if he or she undergoes some type of corrective action, or the medical staff can revoke the physician's privileges if it determines that the physician poses substantial patient safety concerns.
Under the process outlined in the bill, medical staff peer review committees will be required to report physicians to the executive director of the Medical Board of California within 15 days of launching a formal investigation. Within 60 days, the executive director follows up with the medical staff peer review committee to gauge the progress of the investigation and deem whether the corrective action the committee has imposed on the physician is adequate.
"If the executive director determines that the progress of the investigation isn't adequate to protect the public, that case would be turned over to the chief of enforcement so that we can start our own investigation," says Whitney.
"Senate Bill 820, among other things, reminds us that the diversion program is gone," says John Harwell, a lawyer specializing in medical staff issues based in Manhattan Beach, CA. "Overall, I'm sad that the medical board and the legislature have decided that they will no longer be in the rehabilitation business, but rather they will be in the enforcement business."
Harwell says the vast majority of physicians who participate in rehabilitation programs successfully return to practice. "I really don't like the idea that there isn't some centralized process of seeing that this is done and it is now left to the individual hospitals," he says.
Harwell explains that medical staffs will still be permitted to refer physicians to medical staff-run physician wellness committees without having to report to the Medical Board of California. However, if certain physicians do not benefit from the wellness committee's guidance, the only other option is to report those physicians to the medical board.
One of the biggest barriers that prevent physicians struggling with substance abuse or mental health disorders from seeking help is their fear that their condition will not be kept confidential. Under most state laws, any information unearthed by a medical staff peer review committee investigation is kept confidential, and Whitney says any investigations conducted by the Medical Board of California will also be done with an eye to privacy. "Once we file any kind of disciplinary action, that is no longer confidential, but certainly the investigation is confidential," she says.
Liz Jones is an associate editor with HCPro. She writes Medical Staff Briefing, Hospitalist Leadership Advisor, and co-writes Credentialing and Peer Review Legal Insider.She can be reached at ejones@hcpro.com.