Sigrid Bathen

Writer, Editor, Teacher

Tag: 2014

Democrats divided: The race for state schools superintendent

By Sigrid Bathen posted September 23, 2014


 

For an obscure elective office that is often ignored, unknown or regarded as superfluous in California’s convoluted education bureaucracy, the November election for state Superintendent of Public Instruction is shaping up as one of the most contentious — and costly — races among statewide candidates.

The superintendency typically is viewed as a down-ticket backwater – a nonpartisan office with limited power that some say should be abolished.

Superintendent Tom Torlakson, 65, a mild-mannered former state legislator, Contra Costa County supervisor and high school science teacher, against charter-school administrator Marshall Tuck, 41, a Harvard Business School graduate who worked for several years in Silicon Valley and on Wall Street.

But this year, it has become a lightning rod for widespread dissatisfaction with schools in California, which have consistently been ranked among the lowest-performing and poorly funded in the nation.

At the center of the campaign battle is a Superior Court judge’s blistering decision favoring the plaintiffs in Vergara v. California, a closely watched lawsuit challenging the state’s cumbersome, expensive, teacher-tenure and dismissal system. And while ostensibly nonpartisan, the race between two Democratic candidates in a heavily Democratic state has revealed long-standing divisions among Democrats over education reform.

“This is a battle that has been raging [within] the Democratic Party for about 20 years, but it has become quite fierce,” Dr. Raphael Sonenshein, director of the Pat Brown Institute at California State University, Los Angeles, recently told the education news service, Cabinet Report. “In California, with Democrats so dominant, you look for issues that are going to divide the majority party, and I think this one is pretty close to the top.”

The election pits an embattled but well-funded incumbent Superintendent Tom Torlakson, 65, a mild-mannered former state legislator, Contra Costa County supervisor and high school science teacher, against charter-school administrator Marshall Tuck, 41, a Harvard Business School graduate who worked for several years in Silicon Valley and on Wall Street before founding the highly regarded Green Dot Charter Schools. Later, he was CEO of former Mayor Antonio Villaraigosa’s Partnership for L.A. Schools.

Another round of independent expenditures – which by law cannot be coordinated with the candidates’ campaigns – is expected in the general election season.

While outspent in the primary by Torlakson supporters – primarily massive spending by the California Teachers Association and other unions — Tuck has major support from several wealthy pro-charter donors, including philanthropist Eli Broad and businessman William Bloomfield. Tuck’s campaign benefited from some $1.4 million in independent expenditures, including several large contributions from the California Senior Advocates League PAC, a group funded primarily by Broad and Bloomfield.

Tuck was been endorsed over Torlakson – in the primary — by all major California newspapers, which is unusual so early in the election season.

The CTA and other unions spent $2.6 million in the primary for broadcast and print ads for Torlakson, and another $2 million for “issue ads,” which featured Torlakson but don’t expressly advocate for the candidate.

Another round of independent expenditures – which by law cannot be coordinated with the candidates’ campaigns – is expected in the general election season, although both candidates and their handlers are understandably vague about when or how much. A recent spate of independent expenditures on Torlakson’s behalf came from the CTA, the state and national Federation of Teachers and other labor unions – some $450,000 as of Sept. 19, according to Election Track and the Secretary of State’s office.

According to state financial disclosure records, both candidates reported less than $200,000 cash on hand as of June 30 – $194,550 for Torlakson and $179, 913 for Tuck. Total reported expenditures by each candidate from Jan. 1 through June 30 were very close – more than $1.14 million for Torlakson and just over $1 million for Tuck. But as of mid-September, a sharp uptick in candidate contributions favored Tuck, with $381,000 for Torlakson and $448,000 for Tuck.

Consultant: “There was a horrible turnout in the primary and [likely to be] horrible in the general. It’s very hard to get anybody’s attention — unless you have money.”

“There is a ton of money involved,” said Kim Alexander of the nonpartisan California Voter Foundation, a nonprofit which monitors campaign spending and elections. “The unions appear to be stepping up for Torlakson because he has an opponent who has demonstrated he can raise significant amounts of money.”

Getting the Word Out. . .
A veteran campaign consultant knowledgeable about the election said funding for the schools is improving with the economy and strong public support for school funding, but getting the word out is difficult, and running for a little-known state schools office requires campaign cash.

“Unfortunately for a lot of us who care deeply about these issues,” said the consultant, who asked not to be identified, “this is the most difficult time to run for statewide office. There was a horrible turnout in the primary and [likely to be] horrible in the general. It’s very hard to get anybody’s attention — unless you have money. . .

“If you look at the people who fund Tuck’s campaign, they have a very different view of what is a public school, and ‘reform’ is often code for vouchers. People upset with the schools are upset with the cutbacks — no money for counselors, for nothing but the bare minimum. This was the first spring when there haven’t been pink slips. Because of Proposition 30 (Gov. Brown’s sales and income tax initiative, which was passed in 2012 and strongly supported by Torlakson), there is now some capacity to put money back into the schools.”

“I support due-process rights for teachers, but the law is broken and needs to be changed,” he said. “The tenure process is dysfunctional.” — Gary Hart

Tuck, who has never run for public office, says he decided to run after his efforts in the L.A. Partnership, aimed at turning around 17 dismally performing schools in low-income, central-city neighborhoods, were repeatedly stymied by arcane teacher hiring and dismissal rules in an entrenched education bureaucracy.

The strongly worded Vergara decision on June 10 — and reaffirmed in a final ruling on Aug. 28 — came at a fortuitous time for the upstart young candidate, galvanizing public opinion on school inequality and teacher tenure. Los Angeles County Superior Court Judge Rolf M. Treu said K-12 education in California “shocks the conscience” and is flatly unconstitutional for many students, particularly those in poor and minority neighborhoods – a decision which has focused unusually intense attention on the race, as well as copious amounts of campaign cash.

The decision is almost certain to be mired in a lengthy appeals process, and the issue of appealing Vergara is itself controversial.

“These court battles can go on for many years, and nothing may happen, but I hope this does help generate more attention,” says former state Sen. Gary Hart, D-Santa Barbara, a former high school teacher who chaired the Senate Education Committee for 12 years. He was education secretary to Gov. Gray Davis and is the author of many major education bills, including measures to increase school funding and create charter schools.

“I support due-process rights for teachers, but the law is broken and needs to be changed,” he said. “The tenure process is dysfunctional.”

Those with long experience in California education – some of whom do not want to be quoted by name in a contentious race – say that too often “blame the incumbent” becomes the mantra when public dissatisfaction with schools drives elections. In this election, many say, “blame the teachers” becomes an equally convenient form of scapegoating in a Byzantine state education system with plenty of blame to go around.

A recent Field Poll found Tuck leading Torlakson among likely voters by 31 percent to 28 percent – with a whopping 41 percent undecided. The Tuck campaign issued a jubilant press release about the poll in which campaign manager/communications director Cynara Lilly said “voters are ready for a change” and “when given a choice, will choose the candidate with experience turning around public schools – not the Sacramento insider.”

Gov. Brown chose not to appoint a Secretary of Education, instead focusing on the role of the state board as a policy-making body and emphasizing more local control of schools.

But early polls often do not reflect final outcomes. What does appear likely is this: The coming weeks will unleash a blizzard of campaign ads – mainly paid for by massive infusions of independent expenditures.

“This is a battle between the CTA and so-called education ‘reformers’ who hate the unions, and have their own agendas about the way the schools should be run,” said one veteran political analyst who asked not to be named. “They have a certain notoriety because of the public’s clamor about bad schools. . .Does it matter? Does it make a difference? That depends on what you think about the power of the superintendent.”

Hart and many other longtime educators involved in education politics say the superintendency is a largely ceremonial position, with few powers beyond the “bully pulpit.” Hart, who seriously considered running for the job and ultimately decided against it, has long said the office should be abolished.

The current system, critics say, too often works at cross-purposes, with an elected state superintendent, who heads the state Department of Education, as well as a state Board of Education appointed by the governor, plus hundreds of local school districts and boards, county offices of education and boards.

Gov. Brown chose not to appoint a Secretary of Education, instead focusing on the role of the state board as a policy-making body and emphasizing more local control of schools. In a recent interview with Education Week magazine, board President Michael Kirst, a veteran state and national educator and administrator, said California “for years had a fractured and fractious policymaking system,” creating confusion over “who was in charge.” He said the governor has worked closely with the board and Torlakson, “most of whose positions on education are close to his own.”

‘Blame the Teachers’
Both Torlakson and Brown took considerable heat over their recent decision to appeal the popular Vergara decision. The state’s appeal was filed Aug. 29.

“The system is so convoluted and it can take two to three years or more, costing districts $100,000 (and more). There is no reason for these cases to drag on so long,” — Joan Buchanan

Torlakson says the Superior Court decision is constitutionally flawed and unfairly blames teachers for problems in schools. “The people who dedicate their lives to the teaching profession deserve our admiration and support,” he said in a prepared statement after the August ruling. “Instead, this ruling lays the failings of our education system at their feet.”

“No teacher is perfect,” he added. “A very few are not worthy of the job. School districts have always had the power to dismiss those who do not measure up.” He pointed to a bill he and the governor supported, by Assembly Education Committee Chair Joan Buchanan, D-Alamo, which aims to shorten the arduous hearing and appeal process.

Although critics say the measure provides only limited relief, Buchanan, who served 18 years on the San Ramon Valley school board, including four terms as president, says it is a good first step and brings opposing sides in the controversy to the table. “The system is so convoluted,” she said, “and it can take two to three years or more, costing districts $100,000 (and more). There is no reason for these cases to drag on so long,”

Colleagues and even longtime supporters of Torlakson are often torn about the election, particularly prominent Democratic educators who may be union members.

But they also know firsthand the failings of the teacher-tenure and disciplinary process, which has allowed efforts to discipline or fire clearly incompetent, even abusive, teachers to drag on for years, deterring administrators from even attempting to fire a teacher because of the time and expense of the hearing and appeal process.

“When a district goes into receivership (state takeover), it’s usually been a long way to get there, and it’s a long way to get out. We’ve made real progress, but we still have a ways to go.” — Paul Hefnerf

Also at issue in the election is the current two-year probationary period for new teachers, which critics say is actually only 16 months and is not remotely sufficient to determine a teacher’s competence. Nor, they say, does the current system provide adequate support and mentoring to a new teacher who may be having trouble in the classroom.

Dr. Barbara O’Connor, a prominent retired political communications professor at California State University, Sacramento, who founded the Institute for the Study of Politics and Media, said Torlakson “gets blamed for all the woes of education,” including the financial collapse of many school districts in California. And, while Torlakson is blamed for education’s failings, she added “he also has access to [campaign] finances, so it counter-balances.”

Torlakson campaign manager Paul Hefner says the number of districts in financial trouble has dwindled substantially since Torlakson took office in 2011. “At the height of the crisis, one of three kids attended a school [that was] in financial trouble,” Hefner said. “When a district goes into receivership (state takeover), it’s usually been a long way to get there, and it’s a long way to get out. We’ve made real progress, but we still have a ways to go.”

As a former department chair, O’Connor said she often faced personnel and tenure issues, which come with different rules at the university level, and much longer “probationary” periods. “In the universities, you have to wait seven years,” she said. “It’s an onerous process. To have collective bargaining and tenure is tough. I can’t imagine [granting tenure] after only 16 months.”

A union member (the California Faculty Association in the CSU) throughout her long career in higher education, O’Connor says, “I believe in unions.” At the same time, “I’m not always happy with them (the unions). . .I’m ready for some people who want to take some risk.” She has not taken a position in the election. She says she has visited Tuck’s Green Dot Schools and was impressed. “He’s nontraditional,” she said, “and smart.”

“And I’ve always supported Tom Torlakson, since he was in the Assembly,” O‘Connor added. “He’s a great human being, and his daughter Tamara is a friend (Tamara Torlakson is a senior associate at Dewey Square Group, a political consulting firm).”

‘Crippling Bureaucracy’
In an interview with Capitol Weekly, Tuck said the state’s education system “has been broken for a long time, and we do need real change. I’m not a politician, I’ve learned what it takes to do this work.”

But he’s vague on the specifics of how he would change a system entrenched in layers upon layers of legislative, administrative and legal requirements, both state and federal. He said he favors a collaborative approach – a position similar to Torlakson’s.

“The [state] Education Code constrains what can be done, and it’s a crippling bureaucracy,” Tuck said. “There is no individual position that is all-powerful, but this (the superintendency) is a uniquely influential position, for setting the vision, for fundamental change. It is the one position that is non-partisan, focused only on kids, with the ‘bully pulpit’ and specific assigned powers to drive unique change and move the work forward. But it has to be a collective effort.”

As for teacher discipline, he favors major changes in the process, one in which “you touch a kid, and you’re gone.” Working in challenging L.A. schools as part of the partnership with Villaraigosa and L.A. Unified, Tuck said, “We had teachers who literally hit kids and pushed them around, but we were told we couldn’t fire them.”

At the same time, he said, the increasingly controversial “last-hired-first-fired” system of union-backed hiring meant that many excellent teachers were regularly facing pink slips every spring – a particularly serious issue in low-performing schools in poor areas with high teacher turnover. “We had to lay off teachers of very high quality,” Tuck said. At one school, he said, half the teachers got layoff notices, while at other, more desirable schools, “only 5 percent received layoff notices.”

Tuck insists he favors tenure, and disagrees with the pro-voucher, anti-tenure views of some of his well-heeled supporters. “I’ve only worked in union schools,” he added. “I’m an independent, first and foremost.”

Former state Superintendent Delaine Eastin, who founded the California Teacher of the Year Foundation to provide funding for recognition of outstanding teachers and is on Torlakson’s list of supporters, said many top teachers favor significant changes in the probationary and tenure system which is at the heart of the current election. “Some of those teachers are not in favor of the current tenure system,” she said. “Many favor a three-year probationary period, with levels of [job] protection. . .I do think it’s too hard and too expensive to fire a teacher for doing evil things, let alone incompetence.”

California remains one of the lowest among the states in per-pupil spending.

Whatever happens in the superintendent’s election, with its promises of reform and a blizzard of campaign cash, the role of the office comes down to educating kids in an increasingly diverse, economically divided state with some 6 million kids currently attending public schools – an estimated one-fourth of them poor, many attending substandard facilities with overcrowded classrooms, too many failing to complete high school.

And while teacher tenure has become a driving issue in the election, adequate school funding is hardly mentioned. “Both sides agree on the need for more funding,” says Sonenshein. “They disagree about how education should be delivered.”

Post-recessionary infusions to K-12 budgets, with emphasis on poor and low-performing schools, in the governor’s budget are a good start, Eastin and others say, but hardly address the overcrowded classes, aging buildings, staff cutbacks and other gaping holes in the system that began with the 1978 passage of the property-tax limitation initiative, Proposition 13.

California remains one of the lowest among the states in per-pupil spending. “The solution is a long-term plan to get us back to where we fully fund K-12,” says Eastin.

As a young community college teacher in southern California in the 1970s, who became a state legislator and state schools superintendent, Eastin also taught youths at a juvenile detention facility – an experience that helped drive her views of public education in California, which spends far more to incarcerate young people than to educate them.

“It was an excellent experience for determining policy,” she mused. “The state Constitution doesn’t say that the first priority is incarceration. It says the first priority is education.”

Ed’s Note: Sigrid Bathen is a longtime education writer who teaches journalism at California State University, Sacramento.

Doctors’ drug tests: a divisive issue

Doctors’ drug tests: a divisive issue

by SIGRID BATHEN posted 10.19.2014

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On Oct. 23, 2013, San Diego physician Dr. Scott D. Greer submitted urine and hair samples to an investigator for the Medical Board of California, which oversees physician licensing and discipline.  Laboratory tests found the samples to be positive for opiates and oxycodone, but not for alcohol. Nearly one year later, on Sept. 8, according to Medical Board records, Greer was placed on probation for seven years by the board.  His license was suspended for 30 days, effective Oct. 24; he agreed to myriad restrictions and requirements, including submitting to regular, random alcohol and drug testing and monitoring.
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“If he tests positive for anything, he will be notified to immediately cease practice,” said Cassandra Hockenson, public affairs manager for the Medical Board.

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The issue of testing doctors for drug use is a key part of Proposition 46, which has become the focus of huge campaign spending — most of it spent to defeat the initiative.  The measure also would raise the cap on pain and suffering awards in medical malpractice cases, which has been $250,000 since the 1970s, to reflect cost-of-living increases. If approved, the new cap would be about $1.1 million.

The tragic deaths of two young children in 2003, killed by a drug-impaired driver who had been prescribed prescription narcotics by several doctors – a practice called “doctor-shopping” — helped spark the measure, which would also require physicians to consult a state prescription database before prescribing addictive drugs. Bob Pack, the father of Troy and Alana Pack — 10 and 7 when they were killed — left his tech job to pursue legislative solutions, and is a principal spokesman for Prop. 46.

Opponents of Proposition 46, mainly medical malpractice insurers and the powerful California Medical Association, are pulling out all stops – dumping some $57 million into the “No” campaign, roughly $50 million more than supporters of the measure, primarily consumer groups and trial lawyers.

In the case of Greer, 62, he had voluntarily sought help for his long history of alcoholism and drug use after an “intervention” by his family in 2012. He had tried to kick his decades-old habit many times before. For several years, starting in 2003, Greer participated in a beleaguered “doctor diversion” program, administered by the Medical Board and abandoned in 2008 as ineffective, failing to protect patients in the care of participating doctors.

Greer admitted to investigators that he relapsed, providing false urine samples while in the controversial diversion program, which was scrapped by the state after multiple government and independent audits revealed major flaws.

In addition to random laboratory drug-testing, a major part of Greer’s probation includes twice-daily use of the Soberlink breathalyzer test. Results are immediately transmitted with a photograph of the subject via a mobile phone attached to the device.

 “The measure as written is a mess,” says Jason Kinney, a spokesman for the No on 46 campaign. “The drug testing provision is particularly problematic.”

The Greer case marks the first use of the technology by the state board for monitoring physician compliance on probation. “It’s potentially a very powerful monitoring tool for those with alcohol problems,” said Greer’s attorney, David Balfour of Carlsbad, who specializes in physician discipline cases, “because it can provide results instantaneously, [unlike] a random urine screen, which is typically how the board has monitored [physicians].”

Details of the disciplinary actions against Greer and other physicians are posted on the state Medical Board website, www.mbc.ca.gov.

Critics of Proposition 46 say the initiative is flawed.

“The measure as written is a mess,” says Jason Kinney, a spokesman for the No on 46 campaign. “The drug testing provision is particularly problematic.”

But testing doctors for drugs is popular with focus groups and in polls of likely voters. It is privately favored by many physicians, especially those recovering from addiction issues, who argue California needs more official incentive for doctors to seek help – and liability protections for colleagues who may be reluctant to report them.

“At its peak, the diversion program had 300 to 400 participants,” says Balfour, yet the number of Medical Board enforcement actions is considerably lower. “Two-thirds are not getting treatment. In the larger context, if 10 percent of the population [has addiction issues], 12,000 doctors would need some level of help. Not having any official program is a bad outcome.”

The investigative function of the Medical Board, a so-called “self-funded” agency supported by physician licensing fees, was moved in July to the state Dept. of Consumer Affairs.

More than 128,000 physicians are licensed to practice in California, and Greer is believed by critics of the state’s doctor-discipline system to be one of hundreds – perhaps thousands — of physicians who abuse alcohol and drugs. Many may well be practicing while “impaired” and do not seek help from a patchwork physician treatment system long acknowledged by experts to be ineffectual and potentially dangerous to patients in the care of drug- or alcohol-addled doctors.

According to the Medical Board’s annual report, 394 physicians were disciplined in some way in 2012-2013, with actions ranging from license revocation (11) to probation (41) or public reprimand (47). Reasons ranged from “gross negligence” (130) to sexual misconduct (24).

Disciplinary actions for “self-abuse” of alcohol or drugs numbered only 46, with nearly half being placed on probation.

California is one of the few states in the U.S. without an official program to direct physician substance abusers into treatment and monitoring. Legislation to create a new diversion/treatment program has repeatedly failed in the state Legislature.

The investigative function of the Medical Board, a so-called “self-funded” agency supported by physician licensing fees, was moved in July to the state Dept. of Consumer Affairs after Gov. Brown signed legislation last year to reorganize board staff. In the spring of 2013, legislative oversight hearings and intense consumer-group protests over excessive physician prescribing of painkillers prompted sharp legislative criticism of the board’s failure to “protect consumers.”

The Legislature ultimately approved extending the board for four more years, but in July moved its 100-plus investigators to the Division of Investigations within the Consumer Affairs Department. The state Attorney General’s office has long had prosecutorial responsibility for board enforcement actions.

The latest legislative effort to create a physician diversion program was AB 2346 by Assemblywoman Lorena Gonzales (D-San Diego), which proposed a diversion program similar to a State Bar program for lawyers.

Julianne D’Angelo Fellmeth, administrative director of the Center for Public Interest Law at the University of San Diego Law School, has long followed physician discipline issues in California, and is a former state monitor for the Medical Board, issuing one of several scathing audits of the physician diversion program.  She often testifies in the Legislature about physician-discipline issues, and is widely regarded as an expert in the field.

“There are now three layers,” she said of the recent Medical Board reorganization. “The Medical Board, the Division of Investigations and the Attorney General’s office. We won’t know the actual impacts until after the move.” Fellmeth said she would have preferred that investigators be placed in the Attorney General’s office, to work more closely with prosecutors on enforcement cases involving physicians.

Highly critical of the diversion program, she does not favor creation of a similar successor.

“All the doctors insist that [the program] must be secret and confidential, otherwise no doctor will go into it,” she said. “So if there is a program, it [will be] secret. Patients aren’t going to find out about it.” She recalls attending a Medical Board meeting when the diversion program was in effect, when a patient appeared, uninvited, at one of the board’s public meetings, after learning that a plastic surgeon who operated on her, and several others, several years earlier, was in the diversion program.

“It was a botched plastic surgery,” Fellmeth said, “and she told the board she knew a bunch of people who had been injured by him, and they [former patients] had put up a website. Her surgery was in 2001. The physician’s license was finally revoked in 2009 for lying to investigators.”

The latest legislative effort to create a physician diversion program, Fellmeth said, was AB 2346 by Assemblywoman Lorena Gonzales (D-San Diego), which proposed a diversion program similar to a State Bar program for lawyers. “She insisted it be absolutely confidential,” Fellmeth recalled. “The State Bar program has been around for 10 years, and only 11 percent have completed it. I don’t consider that to be a successful program.”

‘A Lame Program’
“The decision to get rid of diversion was progress,” she added. “It wasn’t protecting patients, or doctors. It was a lame program. It could be gamed.”

Many hospitals require some form of drug-testing, but not all doctors have hospital privileges.

“In my experience, the problems are with doctors who don’t have privileges, who work in clinics,” Fellmeth said, citing the highly publicized 1990 case of Dr. Milos Klavana, a Valencia obstetrician who was convicted of second-degree murder in the deaths of eight infants and one fetus. The Medical Board came in for harsh criticism from patient advocates and the judge in the case for failing to intervene.

The recent Greer case is particularly instructive as a bellwether of the discipline system – and the use of high-tech, instantaneous drug testing to monitor doctors on probation.

Greer has been open about his addiction since seeking treatment in 2012, agreeing to a rigorous monitoring program and admitting to past failings. He acknowledged to investigators that he had long been abusing alcohol and drugs while still treating patients, and Medical Board public records show four DUI arrests between 1992 and 2002, with three convictions in 1992, 2000 and 2002. He entered the diversion program in 2003.

“There is no way to trace that. It’s like near-misses, like a drunk driver who has driven 300 times drunk before being caught.”

Medical Board investigators also note several brushes with San Diego law enforcement over assault allegations in 2012 involving a reported attack on a male friend, a former patient, whom Greer threatened with an ax, and an alleged “incident of domestic violence” involving a girlfriend, also a former patient, for whom he was prescribing painkillers. Neither pressed charges, according to Medical Board records, and there were no convictions, although the Sept. 8 disciplinary action by the Medical Board includes writing prescriptions for the former girlfriend without performing a required examination.

“Amazingly, there is no evidence that [Greer’s] drinking has ever resulted in any mistreatment of a patient under his care,” Dr. Mark Kalish, a psychiatrist who evaluated Greer, wrote in a report to the board. “I also don’t think there can be any question that if [Greer] continues to abuse alcohol, patient care will be compromised. The question is not if it will happen, but only when.”

Unless patients are seriously injured, or die, or file lawsuits, it is difficult to determine how many patients may have been harmed by alcohol- and drug-impaired physicians, and patient advocates blame the secrecy of the system for preventing patients from easier access to information about investigations and prosecutions. Statistics and many medical-journal articles show that physicians who do seek help, and are treated by effective programs – called Physician Treatment Programs (PTP’s) or Physician Health Programs (PHP’s) – have a very high rate of success over time, as high as 80 or even 90 percent, according to some articles.

Dr. Stephen Loyd, 47, a Tennessee physician who 10 years ago sought help for his heavy addiction to prescription pain killers through a Tennessee state program, is a frequent, albeit out-of-state, spokesman for Prop. 46. He says “nobody knows” how many patients have been harmed by drug- or alcohol-addled physicians. “There is no way to trace that. It’s like near-misses, like a drunk driver who has driven 300 times drunk before being caught.”

“I had all kinds of potential for harm,” Loyd added. “I wasn’t mean. I wasn’t psychopathic, but I harmed patients in other ways. I had a patient that I got to give me back pills one time. When he found I had gone into treatment for drug addiction, he told me he felt like he ‘caused’ me to ‘get addicted’. . .That is harm, although it didn’t dawn on me at the time that I owed him an apology. I’ve since apologized.”

For doctors who are hiding in bathrooms, they’re miserable, they’re dying. When you first intervene, they’re not going to be happy campers.”

Loyd, chief of medicine at the Mountain Home Veterans Administration Medical Center in Johnson City, Tenn., and an associate professor at East Tennessee State University Medical School, went into treatment after his father confronted him about his drug use. “I’d evaluated myself,” he said. “I was drowning, dying. I self-reported [to the state], and I was in compliance from Day One. I am one lucky SOB. I love my damn life. I get to be a doctor. I used to fuss about the check I had to write every two years for my license. I look at life differently. As bad as it was, my professional life was not suffering. But my wife had had it.”

His son and daughter were 7 and 9 when he went into treatment. His son, now a 20-year-old college sophomore, wants to go to medical school and become an addiction specialist.

Loyd said he supports Prop. 46 because, unlike Tennessee and other states, California has no official system for doctors to get help. “Assuming 2 percent prevalence, there are 2,500 to 3,000 docs who are actively addicted,” Loyd said, “but there is no mechanism, no leverage, to get them into treatment programs.” And while random drug testing of physicians – as called for in Prop. 46 — “won’t be the magic bullet,” he said, “it is an initial deterrent.”

“People look at this as being punitive,” he added. “But for doctors who are hiding in bathrooms, they’re miserable, they’re dying. When you first intervene, they’re not going to be happy campers.”

A September USC/LA Times poll showed weak support for the measure, with 50 percent opposed, 37 percent in favor and 12 percent undecided. Dave Kanevsky of American Viewpoint, the Republican pollster in the bipartisan survey team, characterized approval for the measure as “a mile wide and an inch deep.” Support “looks strong but starts to fold when voters hear both sides,” he told the Los Angeles Times. Sixty-eight percent of those polled favored the provision for drug-testing of doctors.

“We ought to be able to do as well as Alabama, where we were doing about 80 physician interventions a year, in a state with 13,000 practicing physicians.”

Dan Schnur, director of the Jesse Unruh Institute of Politics at USC, said proponents of the measure – mainly consumer groups and trial lawyers – “were very smart. They tried to cover up a controversial measure (limits on malpractice awards) with a popular one (doctor drug testing).” But, he added, “a ballot measure is only as strong as its weakest link.”

Like most legislating-by-initiative, lacking action by a state Legislature repeatedly unable to agree on workable laws to effectively regulate either physician drug use or doctor discipline, the measure is widely regarded as legally flawed – and, like most initiatives, likely to be challenged in court.  Once again pitting doctors and lawyers over malpractice caps, the measure includes provisions such as random drug testing – and a requirement that doctors consult a statewide prescription drug database before prescribing addictive drugs – which are sure to capture public interest.

California Needs Education, Intervention
According to Medical Board records, Greer had been licensed to practice since July 27, 1981. He had graduated magna cum laude in 1974 from UC-Irvine with a Bachelor’s degree in biological sciences, received a Master’s in biochemistry from California State University, Long Beach, in 1976, and a medical degree from the University of Utah in 1980. He did his internship and residency in internal medicine at Los Angeles County/USC Medical Center and a fellowship in gastroenterology at Scripps Clinic.

He entered private practice in 1985 and currently works for the Center for Family Health in San Diego. He is by many accounts a conscientious and caring physician, when he’s clean and sober, which his attorney says he has been since his family intervened and he entered treatment in 2012.

Dr. Gregory Skipper, an addiction specialist and author of many medical-journal articles on physician addiction treatment, is director of the Promises Physician Treatment Program in Santa Monica, where Greer was treated. He cannot discuss specific patients, but is quoted in Medical Board documents as one of the physicians who treated and/or evaluated Greer. Skipper has run or advised physician treatment programs in other states, including Alabama and Oregon, and says California is remiss in not having a program for doctors needing help.

“It’s such a startling fact that California doesn’t have [a program],” Skipper said. “There needs to be a program for education and intervention, which is what other states have. We ought to be able to do as well as Alabama, where we were doing about 80 physician interventions a year, in a state with 13,000 practicing physicians. We are so behind in this in California.”

“If it’s just discipline and enforcement, that’s not enough,” he added. Protection for colleagues who may want to report an impaired physician – sometimes called a “snitch law” – is necessary, he said, which requires physicians to report a colleague’s impairment, but protects the reporting physician from liability. As for drug testing, he said, “if it’s done willy-nilly, it will be unsuccessful.” He favors drug testing of physicians at key junctures in their careers — “before appointment to a hospital, for license renewal.”

And, like most physicians, he favors confidentiality for doctors receiving treatment. “It’s a medical condition,” he said. “It should be private. If doctors refuse to cooperate, they should be reported immediately.”


Ed’s Note: Sigrid Bathen, a Sacramento journalist who has frequently written about physician discipline, is a regular contributor to Capitol Weekly. She teaches journalism at California State University, Sacramento and can be reached at sbathen@csus.edu

© 2018 Sigrid Bathen

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