GREAT NEWS ! California's AB 408 Went POOF!

California's Proposed AB 408 Was a Legal House of Cards

GREAT NEWS ! AB 408 Went POOF!

I have some wonderful news to share! AB 408 is down and out. Withdrawn. Poof! Though its proponent, the ever-licking-their-chops FSPHP, seems determined to reintroduce it next year.

And because of that, I feel it’s my duty to educate physicians in and out of California on details of exactly why this legislation was so horrendous. I do this because I think it’s vitally important for physicians to see what’s in store for us if we don’t remain vigilant and tear into these awful pieces of legislation.

And I’m doing it also to drive home the lesson that, despite the flowery language of the bill, some legislation pertains to things so obscure that there’s no way that legislators or their staff, or the committees, or the Governor can know what the bill would really mean if enacted. And because of our general stance of inactivity, save for a few truly dedicated souls who take the time to get to know legislators and write to inform them of the dangers who do the hard work of filing comments and briefs opposing such bills on our behalf, we’re vulnerable to being taken advantage of by predatory trade groups like the regulatory-capturing national private referral enterprise, FSPHP.

Now, you would’ve thought that the CA Medical Association which is explicitly chartered to represent physicians’ best interests, including their legal and occupational wellbeing, would’ve at least had a few concerns. Likewise, SEIU, the union representing physicians in training. (Did these people even read the bill? Or are they in cahoots with the proponent? Signing off on a lethal bill is no different than a physician signing off on a lethal med dose order.) Members of these two organizations - DUES-PAYING members - have not just a right but a duty to find out. Who backed this bill that is going to endanger us?!?!

I especially want to express my - and our - gratitude to the stalwart Kay Funk MD who’s been doing this very detailed work on monitoring dangerous adoption of PHPs by medical societies and pending legislation, as well as educating physicians about this predatory enterprise for years, first in WA and now in CA. And to the remarkable Disability in Medicine Mutual Mentorship Program (DM3P) and Disability Rights California (DRC) alliance who filed an exceptionally focused public comment/brief articulating their well researched, pointed opposition to the bill. It was that document forwarded to me by a colleague that made me aware of the extraordinary danger of AB 408 and the need for highest priority response. It was for that reason that, prior to publishing the preceding critical post, I too wrote a number of senate chairs of the pertinent committees as well as the President Pro Tem of the Senate and the Senate Majority and Minority leaders detailing my urgent concerns. (“Hate to tell you this, but this is a legal IED and it’s going to blow up on you.”)

A Close Call

This could’ve been a very close call. It sailed through three House committees UNANIMOUSLY, apparently because there was no one key advocacy group to help the legislators translate the flowery language into the cold facts of how this enterprise really works. As noted above, Kay Funk and the DM3P / DRC alliance had been trying to articulate their concern but … the sweet PR of the proponents, not to mention likely lobbyists, can be so compelling.

And it could’ve sailed through the Senate. And it may have been fast-tracked so that it would get an automatic enactment upon final committee hearings and amendments. (I’m not certain of this last point, but I saw this happen in NC - another fast track horrendoma.)

Since the last post, several people contacted me to ask to whom should they write. I’m delighted that there was an active response to this call for active opposition - thank you! Since I learned the bill had been withdrawn, I didn’t post a response to that request as I didn’t want to have people spinning their wheels. But I will elaborate on the response strategy in a subsequent piece (and some next steps at the close of this piece), now that we have some breathing room. And it also taught me an important lesson – next time I write a multi-part article about the importance of active response, I need to lay out the recommended response strategy in the first article.

Despite AB 408’s Disappearing Act …

What I’ll do in this article is march through the content of this (now withdrawn) bill as though it were still in committee as I think it’ll help to do a deep dive into the anatomy and physiology of a very awful bill and what we can do to try to halt progression of its ilk. So please note, while I’m keeping the language of the first draft of this article (prepared before the bill committed harakiri) in the present or future tense, the bill is, for all intents and purposes, gone to the place of bill afterlife … good riddance.

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California's legislators are WERE about to vote on a bill so legally defective that it read like a challenge to see how many federal laws could be violated in a single piece of legislation. AB 408 wasn't just bad policy—it was a constitutional catastrophe waiting to happen.

Okay, let’s look at it in the present tense as if it’s still on the assembly line.

The TWIN Core Deceptions

The bill's foundation rests on two fundamental lies:

Deception #1: The "Safe Haven" Promise
AB 408 markets itself as creating a confidential "safe haven" where physicians can seek help without fear. The bill's proponents use words like "supportive," "voluntary," and "confidential" with the practiced ease of con artists. They promise physicians a place of refuge.

Deception #2: The Investigatory Reality
Buried in Section 2346, the truth emerges: This "health program" classifies ALL records—your psychiatric evaluations, therapy notes, lab results—as "investigatory or security files compiled for licensing purposes." These aren't confidential medical records. They're evidence files the state can use against you while denying you the right to even see them.

This isn't just deceptive—it is the statutory equivalent of medical identity theft. The program was set to pose as your doctor while actually serving as your prosecutor.

The Federal Law Violation Parade

AB 408 doesn’t just bend federal law—it shatters it - with nary a whiff of concern:

• HIPAA: By claiming evaluation and treatment records are "investigatory" rather than medical, the bill strips physicians of fundamental HIPAA rights—not just to privacy, but to access and amend their own medical records. This isn't a loophole; it's HIPAA nullification.

• 42 CFR Part 2: The bill explicitly includes substance use disorder treatment, then allows these federally protected records to be used as evidence in licensing actions without specific consent. That's not just illegal—it's a federal crime.

• ADA Violations: The bill compels medical examinations based on broad categories like "burnout" and "disruptive behavior"—not on objective evidence of impairment affecting job performance. The ADA explicitly prohibits this. Worse, it forces physicians to pay for these mandated exams, violating established case law.

• FTC Act - Antitrust: By creating exclusive referral networks to hand-picked vendors, AB 408 establishes a state-sponsored monopoly. The Sherman Act and North Carolina Dental precedent make this clearly illegal.

• FTC Act - Unfair and Deceptive Practices: Marketing a program as "confidential medical care" while secretly creating investigatory files is textbook consumer fraud. If a private company did this, the FTC would shut them down.

Constitutional Violations

• Due Process (14th Amendment): The bill provides no mechanism to challenge PHP determinations. You can't see the evidence against you. You can't contest the findings. You can't appeal the verdict. This isn't just unfair—it's unconstitutional. Not to mention medically unethical.

• Forced Self-Incrimination (5th Amendment): Compelling physicians to undergo psychiatric evaluations that create evidence for licensing actions violates fundamental protections against self-incrimination.

• Involuntary civil commitment: Compelling physicians without warrant to submit to invasive psychiatric evaluation and detention at specially selected centers is both a civil and human rights violation

The Immunity Shield: Malpractice Without Accountability

Perhaps most egregiously, Section 2350 grants broad civil immunity to everyone involved in this system. This isn't standard medical immunity—it's a license for malpractice:

• PHP-selected evaluators can charge mega bucks for unwarranted evaluations while making fraudulent diagnoses and recommended referrals to preferred programs without liability

• Treatment centers can provide costly unnecessary care without consequences

• Board members can destroy careers based on false information without accountability

There's no medical precedent for immunity designed to shield bad actors from the consequences of their medical malpractice and professional misconduct. This provision alone should disqualify the bill from serious consideration.

The Extortion Model: Pay or Perish

Here's how AB 408's extortion scheme would work:

• The Trigger: Someone reports you for being "burned out,” “disruptive,” or suspicion of being impaired in some way, whether by substance use or otherwise.

• The Mandate: Initial "potential impairment" assessment by PHP/PHWP, while asserting non-medical identity.

  • No access to their evaluation records

  • No second opinions allowed

  • Must use PHP-selected evaluators only; must go to costly out-of-state intensive four-day psychiatric laparotomy “to be sure we don't miss something.”

  • Refusal = "non-compliance" reported to Medical Board

• The Diagnosis and "Recommendation": A two-stage trap

  • Stage 1: PHP screening that nearly invariably finds a "potentially impairing concern requiring further evaluation” (stats are exceedingly difficult to come by.)(BTW, do you know how many people have a "potential impairment?" 100%. If you're privileged to be in the PHP preferred network, that's a pretty sizable market. Especially ripe if you've cornered it.)

  • Stage 2: Mandatory 4-day "comprehensive evaluation" at preferred PHP facility ($5,000-$10,000)

  • The Outcome: Unchallengeable diagnoses—both at initial PHP screening and at the lengthy evaluation

  • The "Recommendation": Invariably geared toward maximum length of stay (90+ days), maximum testing utilization (excessive drug tests, psychiatric batteries), and maximum duration of PHP "monitoring" (5 years)

• Your Bill For This Wellbeing Support: $50,000-$250,000 for unwarranted and ADA-impermissible medical exams and treatment and a derailed medical career

  • 4-day non-specified psychiatric laparotomy: $5,000-$10,000 (add + ~$500 for polygraphy)

  • Possible 90-day inpatient stay: $60,000-$90,000 (or mandated “residential,” or PHP selected “outpatient” treatment)

  • 5 years “monitoring”: $30,000-$40,000

  • Random drug testing over 5 years captivity (utilizing non-FDA-approed tests and advised-against-use by SAMHSA due to false positivity and lack of normative data) : $20,000-$30,000

  • "Therapeutic groups": $10,000-$15,000 (may or may not come with ‘confrontation therapy’ to help break through your denial.)

• The Threat: Comply promptly – without raising a stink – and pay up, or lose your license

  • Challenge the diagnosis? "Lack of insight" = impairment

  • Request independent evaluation? Avoidance, manipulation

  • Request outpatient treatment instead? "Minimizing" = impairment

  • Can't afford it? "Non-compliance" = license action, loss of employment

The PHP Movement Has Mastered the Art of Deception

This isn't metaphorical extortion—it meets the legal definition. Using state licensing power to compel cash payment to PHP- and MLB-preferred private quasi-mental health vendors using proprietary, non-peer validated instruments and methodologies under threat of career destruction is precisely what RICO statutes were designed to prevent.

“Kafka, write about physician wellness.”

The genius of this racket is its medical disguise. By wrapping extortion in clinical language, PHPs have created a system where questioning their authority becomes evidence of your impairment. It's Kafka meets physician wellness.

When a state legislature creates a law that violates HIPAA, 42 CFR Part 2, the ADA, the FTC Act, the Constitution, and basic principles of medical ethics and human rights simultaneously, it's not just bad law—it's evidence that the legislative process itself has been corrupted. (This bill passed through all reviewing House committees unanimously! Without even looking at the repeatedly touted “national standards!”) And that legislators have drunk the soothing PHP Kool-Aid of "supporting physicians' well-being" and "protecting the public."

The legal house of cards that is AB 408 will inevitably collapse. The only question is how many more physician careers will be destroyed before it does. And how much California will have to pay for its legislative malpractice.

Some Immediate Next Steps In Sharpening Your Activism For the Next Prettily Painted PHP State RICO Bill

Surely coming to a state near you - if not already in place.

Your State's PHP: Questions to Ask NOW

Don't wait for the crisis to arrive. Investigate your state's PHP structure today:

Legal Structure Questions:

• Is participation truly voluntary or practically mandatory?

• Are PHP records medical records protected by HIPAA, or "investigatory files"?

• Can physicians challenge PHP findings or diagnoses?

• Does the PHP have quasi-judicial immunity?

• Is there any independent oversight or appeal process?

Financial Questions:

• Who owns the "preferred" evaluation and treatment centers?

• What are the financial relationships between PHP board members and treatment facilities?

• How much does the average physician pay for PHP-mandated treatment?

• Are there exclusive contracts that eliminate competition?

• Who profits when treatment recommendations are made?

Operational Questions:

• Can physicians get second opinions from non-PHP providers?

• Are PHP meetings and records subject to open records laws?

• What percentage of evaluated physicians receive "no treatment needed" findings?

• How long is typical monitoring, and what's the total cost?

• Can physicians continue practicing during evaluation/treatment?

Red Flag Questions:

• Does your medical society endorse the PHP without member input?

• Are physicians afraid to seek mental health treatment because of PHP reporting?

• Have there been suicides associated with PHP involvement?

• Do hospital administrators use PHP referral as a threat?

• Is "disruptive behavior" a trigger for mandatory evaluation?

Document and date your correspondence and the answers you receive. Keep a digital folder and back it up. If an oral conversation, memorialize the conversation with a “Memo to Self” dating it and capturing its essence, including who you spoke with.

There’s more to explore about this entire process, and we’ll cover it in an upcoming piece. Meanwhile, THANKS for your interest and activism! I’m mulling about how’s the best way to bring people together so we can compare notes and perhaps consider an organized course of action. Let me know in the comments.

P.S. The ever-determined-to-pull-CA-into-our-RICO renowned-gold-standard-interstate-cash-prepaid-5-year-membership-Safe-Haven-”You-Can-Trust-Us-With-Your-Wellbeing”-SPA-Program FSPHP says it’s already planning to reintroduce this innovative legislation at CA’s next legislative session. This will be a fine time for former Safe-Haven Spa members to share their experiences about how refreshing their wellness experience was.