Originally Published in California Health Law News - January 2, 2014.
Physicians suffering from substance-related disorders face a difficult combination of legal and health issues, which, unless properly handled, can be career-ending and life-threatening. The most urgent priority is to ensure that the client obtains effective treatment, which will help put the physician on the path to recovery and provide evidence of rehabilitation, a necessary component of any legal strategy to facilitate the physician's return to practice.
This essay briefly reviews the problem of substance abuse in the medical profession, and provides a detailed analysis of the legal issues that an attorney must navigate when representing a physician with a substance-related disorder.
Understanding And Treating Substance-Related Disorders
An effective legal and medical response to substance-related disorders requires a clear understanding (or diagnosis) of the problem. For too long, addiction has been regarded as a moral problem – essentially a failure of personal responsibility,1 but science has now well established that substance addiction is a disease with multiple risk factors, including those based in genetics, biology, psychology and sociology.2 Though substance addiction has a behavioral component, it is a complex, multifactorial disease that cannot be cured or even held in sustained remission by the simple exercise of will power.3
The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) divides substance-related disorders into two primary categories – substance-induced disorders and substance use disorders.4
Substance-induced disorders include intoxication, withdrawal, and substance-induced mental disorders such as psychosis, bipolar disorder, depression, anxiety and other conditions caused by substance abuse.5 These are potentially severe, but rarely persist for more than one month after cessation of use.6 The symptoms of substance-induced disorders may be identical to those of independent mental disorders, but they have very different treatments and prognoses.7 It is thus essential to rule out possible substance-induced effects before diagnosing an independent mental disorder.8 The most common urinalysis drug screens test for a relatively narrow range of controlled substances, and physicians are particularly adept at finding and using intoxicating substances that are not included in such panels. This can result in a misdiagnosis and a missed opportunity to initiate treatment of a potentially lethal substance use disorder.
Under the DSM-5, substance use disorders are characterized by a set of eleven cognitive, behavioral, and physiological symptoms indicating that the individual continues to use substances despite significant negative consequences.9 The DSM-5 places those eleven symptoms into four broader groupings: (1) impaired control over the use of substances, (2) social impairment caused or exacerbated by the use of substances, (3) risky use of substances, and (4) pharmacological criteria including increased tolerance and withdrawal symptoms.10
The eleven symptoms of the substance use disorders are that the individual: (1) takes the substance in larger amounts and for a longer period of time than originally intended; (2) expresses a desire to reduce substance use and may report multiple unsuccessful attempts to do so; (3) spends a great deal of time obtaining, using, and recovering from the substance; (4) experiences craving manifested by an intense desire to use; (5) continues to use despite failures to fulfill major roll obligations; (6) continues to use despite recurrent social problems caused or exacerbated by the substance use; (7) gives up important social, occupational, or recreational activities in order to use the substance; (8) continues to use the substance in physically hazardous situations; (9) continues to use despite knowledge of physical or psychological problems caused or exacerbated by the substance; (10) has increased tolerance of the substance requiring increased doses to have the same effect; and (11) experiences withdrawal symptoms.11
Substance use disorders occur on a spectrum of mild to severe, depending on the number of criteria met.12 As a general working estimate of severity, a mild use disorder is indicated by the presence of two to three diagnostic criteria, moderate by four to five, and severe by six or more of the criteria.13 The DSM-5 thus combines the separate concepts of "substance abuse" and "substance dependence" from the DSM-4 into a single disorder measured along a continuum. Though the DSM-5 does not use the word "addiction" as a diagnostic term with respect to substance use disorders, it is a clinically appropriate designation for the more severe presentations.14
As with society at large, substance-related disorders are a major health issue in the medical profession. Substance abuse among physicians occurs at all levels of experience and professional achievement; it is not concentrated among poor performers or any particular age group. Similar to the general population, an estimated 10%-12% of all physicians will at some point in their career suffer impairment from alcoholism or drug dependency.15 If left untreated, serious substance use disorders have a significant mortality rate.16
There is a growing appreciation of the clinical research showing that substance-related disorders are correctly understood as diseases, and that effective diagnosis and treatment are necessary.17 Consistent with this understanding, California hospital licensing regulations and accreditation standards require hospitals, through their organized medical staffs, to provide for a process to assist members of the medical staff who suffer from a substance-related disorder.18
The Medical Board of California no longer has a physician health program. The Board's Physician Diversion Program (PDP) was abolished in 2008, pursuant to Senate Bill 1441. The PDP allowed physicians who enrolled in the PDP prior to the initiation of a Medical Board investigation to be diverted from the disciplinary process in favor of completing a designated treatment program. Since the abolition of the PDP, resolution of cases involving substance abuse usually requires Medical Board probation.
Legal Issues In Assisting Clients Suffering From a Substance-Related Disorder
Substance abuse problems can become legal problems in any number of ways. Examples include an arrest for driving under the influence of alcohol or for using or possessing illegal drugs; reports by hospital staff that a physician appears to be impaired; or a pharmacist's report of suspicious prescribing.
An indispensable component of any legal strategy in representing a physician with potential substance-related problems is to ensure the physician undergoes a thorough clinical evaluation and treatment as recommended by a physician specializing in addiction medicine, preferably board-certified by the American Board of Addiction Medicine. Though the treatment plan should be individualized, in cases involving a serious substance use disorder, a responsible treatment plan (and one that the Medical Board of California is more likely to approve if it is involved) will generally include: (1) 60-90 days of inpatient treatment; followed by (2) an aftercare program possibly including an intensive outpatient program; (3) twice weekly meetings with a professional support group; (4) five Alcoholics Anonymous and/or Narcotics Anonymous meetings per week; (5) random urine testing; (6) individual meetings with an addiction counselor; and (7) periodic check-ins with a physician specializing in addiction medicine. In some cases, the addiction specialist physician may determine that inpatient treatment is not necessary and may instead recommend certain intensive outpatient evaluation and treatment recommendations.
The client's family deserves special mention. First, the family can provide important support and encouragement for the client. Second, in more difficult cases, the family may be more likely to succeed at intervening and actually bringing the client to a treatment facility than the healthcare and legal professionals. This can literally save the client's life. Third, the family endures enormous emotional and financial stress when a family member (often the primary earner) is temporarily disabled because of substance-related problems. Treat the family with great consideration as an invaluable resource for your client, while understanding that they, too, are suffering from these very challenging circumstances.
At the first reasonable opportunity (after the patient is stabilized, if necessary), the attorney should carefully explain to the client the range of legal issues, emphasizing that each can be managed and that there is a clear path to recovery for those who want it and, in most cases, return to medical practice. The promise of effective treatment and increased well-being during the recovery process can provide a great sense of optimism.
On the other hand, challenging legal issues may put a damper on the client's new sense of hope and motivation to pursue recovery. For this reason, it is also essential to provide appropriate reassurances and explanations of how the legal matters will be handled.
The following paragraphs discuss the most significant and frequently occurring legal issues that physicians with substance-related disorders face.
Medical Staff Discipline
Substance abuse, whether occurring on or off duty, is a basis for medical staff discipline, including summary suspension. In cases where there is strong evidence of substance abuse, especially while on duty, it is usually best to simply accept the suspension rather than request a hearing where a full administrative record of the physician's conduct will be made through recorded testimony and exhibits.
Any legal strategy in defending against medical staff discipline should consider that in most cases the Medical Board will receive an 805 report, which includes information about the discipline. The Board will also likely subpoena and obtain the full record of the peer review proceedings.19
In cases where the medical staff has not yet initiated an investigation or disciplinary action, it may be possible to avoid an 805 report by having the physician voluntarily take a leave of absence under the auspices of the medical staff well-being committee. At most hospitals, the medical staff bylaws and rules provide for a standing well-being committee to assist physicians obtain necessary treatment for substance-related disorders and/or mental illness. A well-being committee can provide advice, referrals, and monitoring appropriate to a given situation. If a physician presents a risk of harm to patients, the well-being committee is usually required to notify the medical executive committee or chief of staff.
Medical Board Discipline
If the Medical Board learns that a physician has a serious substance-related disorder, it will probably seek an interim suspension pursuant to Government Code section 11529. Under this procedure the Medical Board may file either an ex-parte or noticed petition for interim suspension. If the petition is heard on notice, the physician has the right to appear with counsel, present evidence in the form of written declarations and relevant documents, make oral argument, and at the discretion of the administrative law judge ("ALJ") present witness testimony.20
If the petition is filed on an ex-parte basis, the Medical Board must give the physician at least 24 hours notice before the hearing.21 The physician opposing an ex parte petition has the right to appear with counsel, present oral argument and file pleadings with affidavits and other evidentiary documents, but does not have the right to present witnesses. The ALJ may grant the ex parte petition if it appears that "serious injury would result to the public before the matter can be heard on notice."22 If the ex parte petition is granted, the physician has the right to a noticed hearing within 20 days.23 If the ALJ orders an interim suspension, the Medical Board is required to file and serve a formal accusation within 15 days, and conduct a hearing on the accusation within 30 days of the request for hearing, unless the physician agrees to waive such time.24
If the physician has a serious substance-use disorder, it is usually reasonable to stipulate to an ex parte interim suspension order, with agreed-upon language and a reservation of rights for a noticed hearing on the interim suspension and/or a timely filing and hearing on a formal accusation. It is also sometimes possible and prudent, particularly when the physician's attorney knows that the Medical Board will be receiving information that would provide a basis for interim suspension, to negotiate a stipulated suspension before the agency files a petition for interim suspension. For example, if a hospital medical staff summarily suspends a physician for diverting narcotics, or if the physician is arrested for a drug related felony, the Medical Board must be notified.25 In such cases, the physician's attorney should consider contacting the Medical Board's supervising deputy attorney general to negotiate the suspension without the time and expense necessary to oppose a petition for interim suspension.
When the substance-use disorder is less serious, or when the physician has already completed appropriate treatment, it may be reasonable to argue at the hearing on a petition for interim suspension that certain restrictions, such as random drug testing and a practice monitor, but not outright suspension, are appropriate and will fully protect the public.
Resolution of a case after the Medical Board files an accusation requires the attorney to clearly demonstrate that his/her client has undertaken appropriate treatment, is being monitored for relapse and is fit to resume practice on either a full or part-time basis. This is consistent with the Medical Board's primary imperative to protect the public safety and a related statutory mandate that ALJs should fashion a disciplinary order that will aid in the physician's rehabilitation whenever possible consistent with the public safety.26
When the client has progressed in treatment to the point that the treating providers believe the client is ready to resume medical practice, they should each prepare a written evaluation detailing the course of treatment, the client's compliance, and their respective explanations as to why the client is ready to resume practice. In more difficult cases, the attorney should consider obtaining an independent evaluation by a board certified addiction specialist physician not involved in the client's treatment.
Even if the physician completes a very thorough treatment program, the Medical Board may insist upon and order an evaluation by a Board-appointed physician.27 As a practical matter, if the attorney anticipates that the Medical Board will require such an evaluation, it may be best to inquire with the deputy attorney general before retaining a physician at the client's expense to prepare a final evaluation independent of the treatment team.
Settling an accusation is driven substantially by the Medical Board's Model Disciplinary Guidelines and by pending regulations to be added to the California Code of Regulations at Title 16, section 1361.5, entitled "Uniform Standards for Substance-Abusing Licensees" (both available on the Medical Board website). There is some discretion about which terms of the Disciplinary Guidelines to include in a negotiated settlement. By contrast, although not yet promulgated, the terms of section 1361.5 will be mandatory and require the terms of probation to address: (1) notice of employment information to be given to the Medical Board; (2) clinical diagnostic evaluations and reports; (3) worksite monitoring requirements; (4) support group meeting attendance; (5) drug testing; and (6) other conditions of probation related to drug testing and return to practice. While section 1361.5 has not yet been formally adopted, it is already a factor in negotiating settlements with the Medical Board.
Potential Criminal Prosecution
If criminal charges have been filed or appear likely to be filed, it is imperative to refer the client to a skilled criminal defense attorney and to carefully coordinate the Medical Board defense with the criminal defense.
A criminal conviction substantially related to the practice of medicine constitutes unprofessional conduct, and is a basis for discipline by the Medical Board.28 The district attorney or other prosecuting agency must notify the Medical Board of a pending criminal action, and must also advise the clerk of the court in which the action is pending that the defendant is a licensee.29 The clerk of the court must notify the Medical Board within 48 hours after the conviction.30 In addition, a physician is required to notify the Medical Board within thirty days of any felony charge or misdemeanor conviction.31
The Medical Board may also file a motion pursuant to Penal Code section 23 requesting the superior court judge to order the physician to cease practice as a condition of bail. The physician's attorney should consider whether to oppose the motion outright, or argue in favor of practice restrictions and other conditions of bail designed to ensure public safety.
A criminal conviction may cause a physician to be excluded from participating in certain state and federal government health care programs (discussed in greater detail below). It is crucial for the criminal defense attorney to understand which criminal offenses are a basis for exclusion, and that the definition of "conviction" for purposes of exclusion from federal health care programs includes "participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld."32 This broad definition includes the drug diversion programs under Penal Code section 1000, et seq. (a form of deferred adjudication), whereby the defendant pleads no contest to a criminal offense and completes a drug treatment program, after which the charges are dismissed. Some of the offenses for which a defendant may be eligible for drug diversion may also be a basis for exclusion from federal health care programs.33
In some cases, the prosecutor may agree to a deferred prosecution (as distinct from deferred adjudication pursuant to Penal Code section 1000) whereby the criminal proceedings are held in abeyance for an agreed period of time (usually one year), during which time the physician must complete a specified substance abuse treatment program. If the physician succeeds, the prosecutor dismisses the criminal charges. Such arrangements allow the physician to move forward without the collateral consequences of a criminal conviction.
Medicare and Medi-Cal Provider Status
Medical Board discipline or a criminal conviction may adversely affect a physician's provider status with government health care programs, including Medicare and Medi-Cal. A physician must disclose any final adverse action (including a felony conviction or suspension of a medical license) within thirty days, or be subject to revocation of enrollment in the Medicare program.34
A physician convicted of a crime relating to "the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance" is subject to mandatory exclusion from federally funded health care programs for a minimum of five years if the conviction is a felony,35 and permissive exclusion for a minimum of three years if the conviction is a misdemeanor.36 The mandatory and permissive exclusions are imposed by the U.S. Department of Health and Human Services Office of Inspector General ("OIG"). The OIG may also exclude a physician who has been suspended or excluded, or otherwise sanctioned under any state healthcare program, including Medi-Cal,37 or a physician whose license to provide healthcare services has been revoked or suspended.38
A felony conviction for personal possession of controlled substances is not included in the criteria for either mandatory or permissive exclusion from federal health care programs.39 However, if the physician obtains controlled substances by false prescriptions he/she may be subject to exclusion even if the drugs were obtained for personal use. This is very significant for any physician who is considering participation in a drug diversion program pursuant to Penal Code section 1000, et seq.
The California Department of Health Care Services ("DHCS") is required to suspend a physician from the Medi-Cal program who has been convicted of any felony or misdemeanor "involving fraud, abuse of the Medi-Cal program or any patient, or otherwise substantially related to the qualifications, functions, or duties of a provider of service."40 DHCS may also impose mandatory or permissive exclusion from Medi-Cal on the same grounds that the OIG may impose mandatory or permissive exclusion from federal health care programs.41
Drug Enforcement Administration ("DEA")
The DEA may revoke a physician's DEA certificate based upon a criminal conviction or the suspension of a physician's medical license.42 The physician has the right to a hearing on this issue, but under most circumstances he or she should surrender the DEA certificate, then apply for reinstatement following completion of the treatment program and return to medical practice.
De-Credentialing and Termination of Provider Agreements
Many private payers and provider organizations include language in their provider agreements that allows them to terminate based upon discipline by the Medical Board or a criminal conviction. The provider agreement may require the physician to give written notice of an adverse legal action, which may precipitate a de-credentialing proceeding. The physician will generally have limited appeal rights of such action. In any event, the attorney should advise the physician about the possibility of such consequences.
Loss of Board Certification
Many specialty boards will revoke a physician's certification or impose probation based upon a criminal conviction or Medical Board discipline. Many boards also require physicians to provide notice of any adverse legal actions. One of the collateral consequences of losing board certification (and of other adverse legal actions) is that the physician returning to practice may find it difficult to obtain medical staff privileges at certain hospitals.
Medical Board discipline, criminal convictions, and the collateral consequences described above may sharply curtail a physician's immediate and long-range employment opportunities. Some of the most frequently occurring difficulties arise where the employer has a general policy against hiring physicians who are on probation or who have been de-credentialed by one of the major private payers from which a prospective employer draws a substantial portion of its patients.
The attorney should counsel the client that some very good employers are quite supportive, and that in any event the physician should take the long view in returning to practice. Better opportunities will become available as the physician continues in recovery, completes Medical Board probation and re-establishes his or her reputation and a clean track record.
Just as the attorney should counsel the physician to take the long view, so too should the attorney plan for the long term. Recovery is gradual and requires the physician's consistent efforts and hard work, and the attorney's patience, support and encouragement. Even when recovery is going well, the physician is likely to have numerous ups and downs. A good attorney should be both non-judgmental and strategic in working through the legal issues. This will help the physician maintain stability and a sense of direction critical to successful recovery and return to medical practice.
1 Addiction Medicine: Closing the Gap between Science and Practice, The National Center on Addiction and Substance Abuse at Columbia University (June 2012), p. 26.
2 Id. at 19, 22-23.
3 Id. at 21-22.
4 Diagnostic and Statistical Manual of Mental Disorders, American Psychiatric Association (5th ed. 2013), p. 481.
5 Id. at 485.
6 Id. at 489.
9 Id. at 483
11 Id. at 483-484.
12 Id. at 484.
14 Id. at 485.
15 Amanda Buhl, MPH, Michael Oreskovich, M.D., et al., Prognosis for the Recovery of Surgeons from Chemical Dependency, Arch. Surg. 2011; 146 (11:1286-1291).
16 Roger Cicala, M.D., Substance Abuse Among Physicians: What You Need to Know, Hospital Medicine, July 2003, pp. 39-46 (stating that the mortality rate of untreated substance abuse among physicians has been reported as high as 17%).
17 Addiction Medicine: Closing the Gap between Science and Practice, The National Center on Addiction and Substance Abuse at Columbia University (June 2012), pp. 25-26.
18 Cal. Code Regs., tit. 22, § 70703(d); Joint Commission Standard M.S.11.01.01.
19 Cal Bus. & Prof. Code §805, 805.1.
20 Cal Gov. Code § 11529(d).
21 Cal. Code Regs., tit. 22, § 1012.
22 Cal Gov. Code § 11529(b).
23 Cal Gov. Code § 11529(c).
24 Cal Gov. Code § 11529(f).
25 Cal Bus. & Prof. Code §§ 805, 802.1.
26 Cal Bus. & Prof. Code §§ 2001.1, 2229(b).
27 Cal Bus. & Prof. Code § 820.
28 Cal Bus. & Prof. Code § 2236(a).
29 Cal Bus. & Prof. Code § 2236(b).
30 Cal Bus. & Prof. Code § 2236(c).
31 Cal Bus. & Prof. Code § 802.1.
32 42 U.S.C. § 1320a-7(i)(4); 42 C.F.R. § 1001.2(d).
33 Cal Penal Code § 1000, referencing e.g., Cal Health & Safety Code § 11368 (obtaining narcotics by fictitious prescription).
34 42 C.F.R. §§ 424.502, 424.516(d)(1)(ii), 424.535(a)(9).
35 42 U.S.C. § 1320a-7(a)(4); 42 C.F.R. § 1001.101(d).
36 42 U.S.C. §§ 1320a-7(b)(3), 1320a-7(c)(3)(D); 42 C.F.R. § 1001.401.
37 42 U.S.C. § 1320a-7(b)(5); 42 C.F.R. § 1001.601.
38 42 U.S.C. § 1320a-7(b)(4)(A); 42 C.F.R. § 1001.501(a)(1).
39 42 U.S.C. §§ 1320a-7(a)(4), 1320a-7(b)(3).
40 Cal. Welf. & Inst. Code § 14123(a).
41 Cal. Welf. & Inst. Code § 14123.25(a).
42 21 USC § 824(a).