Cal. Code Regs. Tit. 16, § 1361.5 - Uniform Standards for Substance-Abusing Licensees
(a) If the licensee is to be disciplined for
unprofessional conduct involving the use of illegal drugs, the abuse of drugs
and/or alcohol, or the use of another prohibited substance as defined herein,
the licensee shall be presumed to be a substance-abusing licensee for purposes
of section
315 of the Code.
(b) Nothing in this section shall prohibit
the Board from imposing additional terms or conditions of probation that are
specific to a particular case or that are derived from the Board's disciplinary
guidelines referenced in section
1361 that the Board determines is
necessary for public protection or to enhance the rehabilitation of the
licensee.
(c) The following
probationary terms and conditions shall be used without deviation in the case
of a substance-abusing licensee:
(1) Clinical
Diagnostic Evaluations and Reports; Temporary Removal From Practice.
(A) If the Board orders a licensee who is on
probation due to a substance abuse problem to undergo a clinical diagnostic
evaluation, the following applies:
1. The
clinical diagnostic evaluation shall be conducted by a licensed physician and
surgeon who holds a valid, unrestricted license; has three (3) years'
experience in providing evaluations of physicians and surgeons with substance
abuse disorders; and is approved by the Board.
2. The clinical diagnostic evaluation shall
be conducted in accordance with acceptable professional standards for
conducting substance abuse clinical diagnostic evaluations.
3. The evaluator shall not have a current or
former financial, personal, or business relationship with the licensee within
the last five (5) years. The evaluator shall provide an objective, unbiased,
and independent evaluation.
4. The
clinical diagnostic evaluation report shall set forth, in the evaluator's
opinion, whether the licensee has a substance abuse problem; whether the
licensee is a threat to himself or herself or others; and recommendations for
substance abuse treatment, practice restrictions, or other recommendations
related to the licensee's rehabilitation and ability to practice safely. If the
evaluator determines during the evaluation process that a licensee is a threat
to himself or herself or others, the evaluator shall notify the Board within 24
hours of such a determination.
5.
In formulating his or her opinion as to whether the licensee is safe to return
to either part-time or full-time practice and what restrictions or
recommendations should be imposed, including participation in an inpatient or
outpatient treatment program, the evaluator shall consider the following
factors:
a. License type;
b. Licensee's history;
c. Documented length of sobriety/time that
has elapsed since substance use;
d.
Scope and pattern of substance abuse;
e. Treatment history;
f. Medical history;
g. Current medical condition;
h. Nature, duration, and severity of
substance abuse problem; and
i.
Whether the licensee is a threat to himself or herself or the
public.
6. The cost of an
evaluation shall be borne by the licensee.
7. For all evaluations, a final written
report shall be provided to the Board no later than ten (10) days from the date
the evaluator is assigned the matter. If the evaluator requests additional
information or time to complete the evaluation and report, an extension may be
granted, but shall not exceed 30 days from the date the evaluator was
originally assigned the matter.
(B) Whenever the Board orders a licensee to
undergo a clinical diagnostic evaluation, the Board shall order the licensee to
cease practice pending the results of the clinical diagnostic evaluation and
review by the Board.
(C) While
awaiting the results of the clinical diagnostic evaluation, the licensee shall
undergo random biological fluid testing at least two (2) times per
week.
(D) The Board shall review
the clinical diagnostic evaluation report within five (5) business days of
receipt to determine whether the licensee is safe to return to either part-time
or full-time practice and what restrictions or recommendations shall be imposed
on the licensee based on the recommendations made by the evaluator. No licensee
shall be returned to practice until he or she has at least 30 days of negative
biological fluid tests or biological fluid tests indicating that a licensee has
not used, consumed, ingested, or administered to himself or herself a
prohibited substance, as defined in section
1361.51(e).
(2) Notice of Employer or Supervisor
Information. If a licensee whose license is on probation has an employer or
supervisor, the licensee shall provide to the Board the names, physical
addresses, mailing addresses, and telephone numbers of all employers and
supervisors and shall give specific, written consent for the Board, the
worksite monitor, and his or her employers and supervisors to communicate
regarding the licensee's work status, performance, and monitoring. For purposes
of this section, "supervisors" shall include the Chief of Staff and the Health
or Well Being Committee Chair, or equivalent, if applicable, when the licensee
has medical staff privileges.
(3)
Biological Fluid Testing.
(A) The Board shall
require biological fluid testing of substance-abusing licensees.
(B) For the purposes of this section, the
terms "biological fluid testing" and "testing" mean the acquisition and
chemical analysis of a licensee's urine, blood, breath, or hair.
(C) The Board may order a licensee to undergo
a biological fluid test on any day, at any time, including weekends and
holidays. Additionally, the licensee shall be subject to 52-104 random tests
per year within the first year of probation, and 36-104 random tests per year
during the second year of probation and for the duration of the probationary
term, up to five (5) years. If there has been no positive biological fluid
tests in the previous five (5) consecutive years of probation, testing may be
reduced to one (1) time per month.
(D) Nothing precludes the Board from
increasing the number of random tests to the first-year level of frequency for
any reason, including, but not limited to, if the Board finds or has suspicion
that a licensee has committed a violation of the Board's testing program or has
committed a violation as identified in section
1361.52(a), in
addition to ordering any other disciplinary action that may be
warranted.
(E) The scheduling of
biological fluid testing shall be done on a random basis, preferably by a
computer program, except when testing on a specific date is ordered by the
Board or its designee.
(F) The
licensee shall be required to make daily contact with the Board or its designee
to determine if biological fluid testing is required. The licensee shall be
tested on the date of the notification as directed by the Board or its
designee.
(G) Prior to changing
testing locations for any reason, including during vacation or other travel,
alternative testing locations must be approved by the Board and meet the
requirements set forth in section
1361.54.
(H) The cost of biological fluid testing
shall be borne by the licensee.
(I)
Exceptions to Testing Frequency Schedule.
1.
Previous Testing Orders/Sobriety. In cases where the Board has evidence that a
licensee has participated in a treatment or monitoring program requiring random
testing prior to being subject to testing by the Board, the Board may give
consideration to that testing in altering the Board's own testing schedule so
that the combined testing is equivalent to the requirements of this
section.
2. Violation(s) Outside of
Employment. A licensee whose license is placed on probation for a single
conviction or incident or two convictions or incidents spanning greater than
seven years from each other, where those violations did not occur at work or
while on the licensee's way to work, where alcohol or drugs were a contributing
factor, may bypass the first-year testing frequency requirements and
participate in the second-year testing frequency requirements.
3. Not Employed in Health Care Field. The
Board may reduce the testing frequency to a minimum of 12 times per year for
any licensee who is not practicing or working in any health care field. If a
reduced testing frequency schedule is established for this reason, and if a
licensee wants to return to practice or work in a health care field, the
licensee shall notify and secure the approval of the Board. Prior to returning
to any health care employment, the licensee shall be required to test at the
first-year testing frequency requirement for a period of at least 60 days. At
such time the person returns to employment in a health care field, if the
licensee has not previously met the first-year testing frequency requirement,
the licensee shall be required to test at the first-year testing frequency
requirement for a full year before he or she may be reduced to testing
frequency of at least 36 tests per year.
4. Tolling. A Board may postpone all testing
for any licensee whose probation is placed in a tolling status while the
licensee is not residing in California, provided the overall length of the
probationary period is also tolled. A licensee shall notify the Board upon the
licensee's return to California and shall be subject to biological fluid
testing as provided in this section. If the licensee returns to employment in a
health care field and has not previously met the first-year testing frequency
requirements, the licensee shall be subject to completing a full year at the
first-year testing frequency requirements, otherwise the second-year testing
frequency requirements shall be in effect.
5. Substance Abuse Disorder Not Diagnosed. In
cases where no current substance abuse disorder diagnosis is made, a lesser
period of monitoring and biological fluid testing may be adopted by the Board,
but shall not be less than 24 times per year.
(J) Reinstatement of License or Reduction of
Penalty. Nothing herein shall limit the Board's authority to reduce or
eliminate the penalties herein pursuant to a petition for reinstatement or
reduction of penalty filed pursuant to Government Code section
11522.
(4) Group Support Meetings. If the Board
requires a licensee to participate in group support meetings, the following
shall apply:
(A) When determining the
frequency of group support meetings to be attended, the Board or the evaluator
shall give consideration to the following:
1.
The licensee's history;
2. The
documented length of sobriety/time that has elapsed since substance
use;
3. The recommendation of the
clinical evaluator;
4. The scope
and pattern of use;
5. The
licensee's treatment history; and
6. The nature, duration, and severity of
substance abuse.
(B) The
facilitator of a group support meeting shall conform to the following
requirements:
1. He or she shall have a
minimum of three (3) years' experience in the treatment and rehabilitation of
substance abuse, and shall be licensed or certified by the state or nationally
certified organizations.
2. He or
she shall not have a current or former financial, personal, or business
relationship with the licensee within the last five (5) years. A licensee's
previous participation in a group support meeting led by the same facilitator
does not constitute a current or former financial, personal, or business
relationship.
3. He or she shall
provide to the Board a signed document showing the licensee's name, the group
name, the date and location of the meeting, the licensee's attendance, and the
licensee's level of participation and progress.
4. He or she shall report a licensee's
unexcused absence to the Board within 24 hours.
(C) Any costs associated with attending and
reporting on group support meetings shall be borne by the
licensee.
(5) Worksite
Monitor Requirements and Responsibilities.
(A)
The Board may require the use of worksite monitors. If the Board determines
that a worksite monitor is necessary for a particular licensee, the licensee
shall, within 30 calendar days of the effective date of that determination,
submit to the Board or its designee for prior approval the name of a worksite
monitor. The worksite monitor shall meet the following criteria to be approved
by the Board:
1. The worksite monitor shall
not have a current or former financial, personal, or familial relationship with
the licensee, or other relationship that could reasonably be expected to
compromise the ability of the monitor to render impartial and unbiased reports
to the Board. If it is impractical for anyone but the licensee's employer to
serve as the worksite monitor, this requirement may be waived by the Board;
however, under no circumstances shall a licensee's worksite monitor be an
employee or supervisee of the licensee.
2. The worksite monitor's scope of practice
shall include the scope of practice of the licensee being monitored, be another
licensed health care professional if no monitor with like scope of practice is
available, or, as approved by the Board, be a person in a position of authority
who is capable of monitoring the licensee at work.
3. If a licensed professional, the worksite
monitor shall have an active unrestricted license with no disciplinary action
within the last five (5) years.
4.
The worksite monitor shall sign an affirmation that he or she has reviewed the
terms and conditions of the licensee's disciplinary order and agrees to monitor
the licensee as set forth by the Board.
(B) The worksite monitor shall adhere to the
following required methods of monitoring the licensee:
1. Have face-to-face contact with the
licensee in the work environment on as frequent a basis as determined by the
Board, but not less than once per week.
2. Interview other staff in the office
regarding the licensee's behavior, if requested by the Board.
3. Review the licensee's work
attendance.
(C) Reporting
by the worksite monitor to the Board shall comply with the following:
1. The worksite monitor shall verbally report
any suspected substance abuse to the Board and the licensee's employer or
supervisor as defined in subsection (c)(2) within one (1) business day of
occurrence. If the suspected substance abuse does not occur during the Board's
normal business hours, the verbal report shall be made to the Board within one
(1) hour of the next business day. A written report that includes the date,
time, and location of the suspected abuse; the licensee's actions; and any
other information deemed important by the worksite monitor shall be submitted
to the Board within 48 hours of the occurrence.
2. The worksite monitor shall complete and
submit a written report monthly or as directed by the Board. The report shall
include the following:
a. The licensee's name
and license number;
b. The worksite
monitor's name and signature;
c.
The worksite monitor's license number, if applicable;
d. The worksite location(s);
e. The dates the licensee had face-to-face
contact with the monitor;
f. The
names of worksite staff interviewed, if applicable;
g. An attendance report;
h. Any change in behavior and/or personal
habits; and
i. Any indicators that
can lead to suspected substance abuse.
(D) The licensee shall complete any required
consent forms and execute agreements with the approved worksite monitor(s) and
the Board authorizing the Board and worksite monitor to exchange
information.
(E) If the monitor
resigns or is no longer available, the licensee shall, within five (5) calendar
days of such resignation or unavailability, submit to the Board the name and
qualifications of a replacement monitor who will be assuming that
responsibility within 15 calendar days. If the licensee fails to obtain
approval of a replacement monitor within 60 calendar days of the resignation or
unavailability of the monitor, the licensee shall receive a notification from
the Board or its designee to cease the practice of medicine within three (3)
calendar days after being so notified. The licensee shall cease the practice of
medicine until a replacement monitor is approved and assumes monitoring
responsibility.
(F) Worksite
monitoring costs shall be borne by the licensee.
(6) The licensee must remain in compliance
with all terms and conditions of probation. If the licensee commits a major or
minor violation, as defined in section
1361.52, the Board will execute
the disciplinary actions required by that section, and impose any additional
terms or conditions necessary for public protection or to enhance the
rehabilitation of the licensee.
Notes
Note: Authority cited: Sections 315, 315.2, 315.4 and 2018, Business and Professions Code; and Section 11400.20, Government Code. Reference: Sections 315, 315.2, 315.4, 2227, 2228, 2229 and 2234, Business and Professions Code; and Sections 11400.20 and 11425.50(e), Government Code.
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