3 Senators Insist DOJ Immediately Investigate Medical Boards' ADA Violations - Part 1

DOJ Disability Rights Section Particularly Interested in Examining Medical Boards' ADA Violations As Pertain To Safely Accessing Mental Health Help

(see here for links to each article in the series)

Intensive Scrutiny Underway of ALL US State Medical Licensing Boards for Systematized ADA Violations.

Three US Senators and US DOJ Disability Rights Section (enforcers of Title 2 of the ADA) are investigating the entire state medical licensing board system for a range of potential violations of Title 2 of the American with Disabilities Act (ADA).

No-nonsense letter from Sens Wyden, Merkley, & Booker urging DOJ to investigate MLBs offenses under ADA

In an urgently worded letter, Senators Wyden (OR), Merkley (OR), and Booker (NJ) have written to US DOJ and specifically its Disability Rights Section that enforces the Americans with Disabilities Act (ADA), exhorting them to immediately enforce that part of the ADA – Title 2 – that governs state medical boards (MLBs) and their handling of mental illness.

The Senators’ letter is extremely well informed, focusing not just on the harm that comes from MLBs asking ADA-impermissible questions about mental health on licensure exams and applications. They want to understand the full array of all other ADA-violating harms by state medical boards that impact a physician's ability to get mental health help. And not only to get needed help, but equally as important, not irreparably harm their careers for getting it, for example by stamping them as “impaired” and sending them to a PHP gulag for life.

You'll see in the letter how serious the Senators and DOJ Disability Rights Section (“SenDOJ” hereafter) are about investigating and remedying this on a priority basis. It seems clear that they are beginning to appreciate that these widespread violations by state medical licensing boards (MLBs) are causing immense harm to physicians whose profession as a whole has already been beaten to a pulp by the combined forces of burnout, pandemic response and corporate servitude.

The SenDOJ urgently want to know not only the extent of the harm to physicians’ careers but also the various ways – in addition to impermissible licensure questions – it has been accomplished. Currently, their focus is only on MLBs’ ADA violations. There are myriad other federal violations that accompany these Title 2 violations that they may not yet be able to focus on.¹ Surely the Title 2 ADA violations alone will keep the SenDOJ teams busy.

Docs Don’t Know What They Don’t Know

"I've been wronged; it’s not fair…."

One of the biggest holdbacks for physicians in filing federal complaints or initiating litigation to challenge these violations and protect their rights is simply this: we're not lawyers. Even more fundamental than that, we don’t know what laws have been violated to harm us, what our rights are, and what are the means to protect those rights and achieve justice for harms done. Sometimes, all you can say is "I've been wronged;" "that's not fair;” or "this is just not right.” There’s a great need to help identify the legal nature of the wrongs and relate them to potentially applicable law. And that's one of the roles that CPR is playing.

Our Two Failed Failsafes

The longstanding presumption we as physicians have operated under is that the healthcare entities and the agencies that regulate them and us – the healthcare system as a whole – abide by rules of fairness governed by law. And as physicians we've understandably relied mainly on two oversight mechanisms to make sure that these various agencies, esp. the state medical boards and their exclusively contracted fitness-for-duty entities the PHPs, don't harm us. First, we’ve presumed an active role of state government in overseeing them. And second, like all other professions that have collective voices, we’ve relied on our state and national medical, surgical, psychiatric and other professional societies, of which many of us may be members, to maintain an active watch on developments that could adversely affect our professional welllbeing.

We have implicitly assumed that both, but surely at least one or the other, would serve as a failsafe guardian, keeping an ever-watchful eye, monitoring for potential abuse of rights that could cause irreparable harm to physicians’ careers and also deprive society – and more specifically hurt our patients – of urgently needed general and specialty medical care.

However, as is becoming clear, both these entties have failed us severely in confronting ADA and other abuses by state MLBs and their contracted PHPs.

State government has demonstrated lame passivity – deaf ears and blind eyes – to the abuses over a course of decades, despite complaints being voiced by many physicians in many states. Some states may be more actively complicit in the allowance of MLB violations resulting in harm.

Medical societies at the state and national level likewise have been virtually asleep at the wheel and have allowed these harms to occur.

But why?

It’s not well known that medical societies themselves are the parent of the current PHP enterprise. And because these state medical societies themselves comprise the AMA, the PHPs are as much an offspring of AMA as of each of the state medical societies. Further, the leaders and members of PHPs and state medical boards may also be distinguished members of these national organizations, making straightforward criticism difficult. Just about no organization wants an internal noise-maker. Even (perhaps especially) when they speak uncomfortable truths.    

Is it because of these medical societies’ parentage of the PHP system, perhaps in some cases their members' ownership or privilege of "preferred referral" to its facilities? Then again, perhaps it’s a tacitly understood form of vigorish, protecting their own members from rapacious “alleged impairment” inquiry by the board and the ensuing entrapment in the PHP impaired physician gulag. A comparative review of medicalized discipline sentences handed down to medical society members and non-members might prove revealing.

And as noted above, there is such an intermingling of roles and organizational entities involved in the unseen MRTC that MLBs, PHPs, HCEs and state medical societies are, for all practical purposes, a unified entity whose interests are indistinguishable and who are reticent to criticize or hold accountable their medical regulatory brethren.²

Also little known, some medical societies, perhaps even most, have secret agreements (MOUs - “memoranda of understanding”) with state medical boards and their exclusively contracted physician health programs. And because they’re so enmeshed in the complex, reining in the abuses of both MLBs and PHPs would require courageous institutional integrity, something I would imagine parties in secret compacts might be loathe to embrace as its means daring to speak up to their partners in crime, and so, through passive complicity, they remain silent, close their ears and avert their eyes, and give their assent to these abuses.

The bottom line is that both wings of our relied upon oversight have failed. Miserably. Perhaps, even intentionally?

But worse, two additional organizations that knew or should have known about these violations and could have exercised oversight and corrective guidance are the respective trade groups that represent state MLBs and PHPs, the Federation of State Medical Boards (FSMB) and the Federation of State Physician Health Programs (FSPHP). I can only surmise that their very cowardly and self-interested reasoning went along the same lines as the medical societies’ – as long as the arrangement was working for their member organizations, and as long as nobody notices the violations (is this perhaps the desire to erase from institutional memory the core principles of the seminal NJ Jacobs case?), then let’s just let it be. This is the stance from institutions that enrobe themselves in the high sounding virtues of patient safety and physician wellbeing.

And it’s a result of that failure that we’re now in the current crisis of pervasive abuse by both MLBs and PHPs and why three US Senators and the Disability Rights Section of US DOJ are now actively examining the extensive array of harms to physicians’ careers caused by MLBs’ and PHPs’ systemic violations of well established federal law, in this inquiry Title 2 of the ADA.

This could be an astounding step forward for protecting physicians’ rights and reining in medical board and PHP tyranny.

It’s important to stress that intense SenDOJ scrutiny is not simply examining scattered ADA transgressions that may have veered from the fine letter of the law. It’s examining the possibly willful systematic violation as a pattern or practice of Title 2 of the ADA.

This is a remarkable development. US DOJ is actively inviting physicians to submit their complaints for review and possible investigation. (For details, see linked article for Part 2.) Imagine! If enough physicians convey their Title 2-focused complaints to DOJ, this could be an astounding step forward for protecting physicians’ rights and halting this sort of ADA-based joint MLB – PHP abuse.

What’s the Significance of the ADA?

Why is the ADA playing such a central focus in SenDOJ’s scrutiny?

How exactly does it play any useful role in enabling access to docs’ getting mental health care and not having their careers jeopardized as a result?

Or, to put it the way one doc posed,

If I’m not disabled, why should I care? After all, most docs aren’t disabled, and so this shouldn’t be of the slightest concern to them. Whatever’s going on with boards and disabled folks, well, I hope they get a fair shake.

And besides, if practice keeps going the way it’s going and making us all stressed to the max and miserable, I’m liable to get disabled! Maybe then, you can fill me in.

It’s no secret that most docs feel that nearly every aspect of practice today has become almost intolerably painful. Hospital and practice economics, the burdensome medical record, demands from regulations and administrators and insurance companies, relentless fear of getting sued, all this on top of the “ordinary” wear and tear of clinical care, and then further the huge psychological and physical impact of caring for people in a prolonged pandemic – it’s driving the whole profession into a state of despair.

And if you’re already grappling with some form of distress, say burnout or financial or litigation stress, it doesn’t take much to tip you into emotional illness territory.

Worse, in a hostile environment, anybody can make an accusation that you’re … prone to errors … always irritable … forgetting to write orders … short-tempered with patients or the team ….

And in really nasty hospital cultures, sadly of which there seem to be many, a small group of people can contrive groundless concerns, and you can be subjected to what, for want of a better term, might be called “bully-targeted sham peer review on the fly.” Essentially a roaming career lynch mob.

If you’ve not experienced any of this, how fortunate you are! But I suspect you’d be in the minority.

A Not Unusual Scenario

Imagine for a moment you’re a mid-career doc and the misery’s ramped up. You’ve gotten depressed, or burned out, or perhaps you snapped at someone, and your chair or CEO says (well-intentioned or not) “we’re worried about you; you need to go to the PHP, and if you don’t go we’re suspending your privileges and you’ll be reported to the board and the NPDB - and the board will surely make you go.”

Now what?

You may not realize it at that point, but your career – not just your immediate hospital appointment but your ENTIRE CAREER – is in jeopardy. And no matter how you respond to the board or the PHP, you are already up to your ears in alligators (my Louisiana roots).

And you balk and they suspend your privileges and the board – and your lawyer – tell you you’ve got to go to the PHP. And they do an evaluation and say “we think you’re depressed, and maybe you’re drinking too much … we want you to go for a special evaluation.”

Whaddaya mean I’ve now got to go to Kansas … for a $10,000 ‘fitness for duty’ exam … to determine whether I’m safe to practice … because you’ve infallibly declared that I’m impaired??!

At this point in time, whatever the reality is of what you’re actually experiencing psych-wise, it’s now become immaterial. A cascade of policies and laws is now determining the courses of action.

Like nearly every other doc, you’re going to bristle, fight it, get a lawyer, pay chunks of money, stew, shake your skinny fists to heaven, pace in a state of rage or fright…. And all of it is going to be for naught. Because as you’ll soon discover, you now find yourself in a foreign territory where you are just about 100% powerless. You have entered into what we might best term “MRTC custody.”

What’s all this have to do with you and the ADA. After all, you’re not ‘disabled.’ You’re just caught in this Kafkaesque nightmare.

Disability or not, we know this: you’ve been put on leave by your department at the hospital; your privileges have been suspended, you and your lawyer believe unfairly. You’ve now got a board investigator demanding to meet with you, allegedly to help you ‘square things away,’ and you’ve been told to report to the PHP, the so called physician health program, within 10 days. Or else.

“Or else what!?” you demand to know.

Or else your medical license will be suspended on an emergency basis; it’ll be publicly announced, and reported to the NPDB and to all other state medical boards. And you may never be able to practice again. Ever.

We’ll fast forward … through the gnashing of teeth; the $20,000 legal retainer, the entire work product of which is a letter telling you that you have to do what the board says; the uncomfortable PHP interview with the human equivalent of a social worker bot; their board-enforced “recommendation” that you go to a $10,000 evaluation in an obscure location, and no, they won’t give you their evaluation record … forward to the point that it now becomes clear that you don’t know one law – or lawyer for that matter – that can put a stop to this Kafkaesque nightmare. And you feel a sense of hopeless doom overtaking your life.

After close to a decade of research, seeking to find out exactly what laws might govern this situation and particularly, what laws pertain to a medical board and its tied-at-the-hip fitness-for-duty evaluator, I made a startling discovery.

The Louisiana Bar was found to have been in violation of the ADA for asking impermissible questions on its licensing exam. “The Bar’s like a medical board!” And then I discovered that the NJ Medical Society actually had earlier sued the NJ Medical Board (1993) for similar licensure violation questions. And in that seminal case, US DOJ wrote an outstanding amicus brief detailing the applicability of the ADA to the alleged violations.

But I still didn’t have any idea what significance these licensure question violations might have to do with physicians getting hauled into medical boards, then railroaded into a PHP psychiatric evaluation and then, without revealing what the PHP found, told they had to go to a costly out-of-state specialized 4 day fitness-for-duty assessment or else lose their license, all on an allegation of a single anonymous person that the doc was mentally ill.

As you’ll see, it turns out that the rights violations in this nightmarish course of events, while touching on diverse state and federal laws, is most significantly governed by principles enumerated under the Americans with Disabilities Act (ADA).

ADA governs employer and state government handling of persons with disabilities, including their hiring, fairness in employment, prevention of myriad forms of discrimination and predatory abuse, imposition of various hurdles that compel the disabled individual to prove him/herself, and even the type of medical exam the employer can order to ascertain whether the disabled employee is performing sufficiently and does not pose a threat.

The scope of conditions covered under ADA is expansive. And the whole thrust of ADA was to give everybody who’s actually trained and qualified for a certain job the equal opportunity to take on that job, and not be ruled out simply because of erroneously perceived limitations due to their disability.

This one law may turn out to be the key law protecting physicians from abuse by the medical board, PHP, and hospital triumvirate, both in their discriminatory licensing and credentialing of physicians and in their making allegations of insufficient performance as being due to that person’s existing or even newly perceived disability.

Interestingly, it’s a law that very few so called professional license defense lawyers know diddly about. Many early in their careers cut their baby sharks teeth employed at the very type of dictatorial agency under scrutiny - the MLBs. One might surmise that they don’t know its applicability because their mentors at these agencies conveniently chose to ignore it, apparently hoping to institutionally forget it and erase it from referential memory. And that’s exactly why MLBs are now under the microscope. Because the cumulative and extreme harms from their plethora of ADA abuses and their complete lack of both internal compliance guidance and willful absence of external oversight necessitated this level of intervention.

You may still be scratching your head wondering how the ADA applies to docs who don’t have any current disabling condition. Yeah, they might’ve had serious depression in high school, or gotten caught with pot, or maybe even now feeling kind of burned out …

Why in the world would the ADA apply to me if I’m saying I’m not impaired or disabled?

“Because,” as my ADA mentor who wrote the book “Understanding the ADA” replied to me asking that very same question four years ago, “you don’t understand the ADA.”

Brace yourself for this:

You don’t have to be disabled to be covered under the ADA.

You can be perfectly fine, wholly intact, thinking clearly, acting reasonably, and you’re covered under ADA’s blanket of protections (the gist of which we’ll get to subsequently).

But why would a non-disabled, non-impaired person be covered?

Because when Congress enacted this law, to help give every capable person the opportunity to work at a job they’re fully qualified for, they knew that some employers would try to use the “you’re too this or too that... eeeue, you’re ‘disabled’” gambit to shake ‘em outta their applicant pool. In other words, they’d “regard you” as disabled. And in doing so, they’d they say they had to put you though the paces to make you you could cut it. And they’d run you ragged, and make you go through this test and that test, all of which you’d have to pay for (of course). And you’d eventually fail, ‘cause they knew they were never going to hire you, and they just wanted to play you until you emptied your wallet and bit the dust.

Now, “people of color” (a phrase I’m not a fan of, but one that aptly conveys the privileged notion that people of skin tones other than sheetrock white and coppertone tan need not apply) are no strangers to this centuries-old routine.

So in designing the ADA, Congress wisely included in the scope of its coverage the concept of “regarded as” so as to prevent this very kind of abuse that would be leveled against those who actually had a disability.

Now, to understand ADA, you’ve also got to clear your mind of certain limiting preconceptions of disability you might have. Yes, people in wheelchairs. Yes, people who are visually impaired and walk with a seeing eye dog. But also anyone who’s got some functional limitation (as viewed through “fully abled” eyes) that doesn’t meet someone’s criteria of what that ideal candidate should be like. These exclusionary biases are what are known as stereotypes, and it was such stereotypical thinking and discriminatory exclusionary behavior that ADA sought to confront.

ADA basically says you can’t take a category of illness or even differently abled function and label that entire group as “impaired” and thereby automatically unqualified for the job, and thus excluded, or extruded, from employment.

Some examples of discriminatory stereotypes:

• That one’s got a stutter - surely can’t work in healthcare.

• That one’s got a limp and walks with a cane. Not in my hospital!

• That one’s got crossed eyes. Could never be a doc.

You see how crazy it can get.

So ADA gets established ~ 1980 and sets out standards that prohibit not only employers but state and local governmental entities from making these stereotypical conclusions that serve to create barriers that exclude fully capable and job-qualified people from getting or keeping their jobs. And it specifically prohibited discriminatory questions on job applications. And it also specifically limited creating employment barriers such as excessive testing and other burdensome surcharges that were designed to screen out those with a disability of some sort.

Congress knew that those with episodic mental illnesses like: depression & bipolar disorder, and those with episodic PTSD; and those who slipped into substance abuse but were striving for recovery; all were likely going to be subject to discriminatory treatment in their seeking and maintaining employment and even education.

And Congress also knew how crafty employers could be in masquerading their unfair selection and culling process as “concerns about capability” and using a host of unnecessary testing and other obstacles to discriminate against certain people, not because they even had a disability, but because they could use the “disability attribution” to break them.

So, getting back to our Doc’s Kafkaesque plight. Welcome to Dante’s medical career inferno. They say you’re impaired. And you and others believe you’re not, certainly not in the ‘getting sidelined for the rest of your life’ way.

Today, one of the main ways that MLBs are putting docs through the paces unreasonably and sometimes with hostile intent is by alleging impairment and therefore implying imminent threat to patient safety, thus justifying the need to undergo “official” determination of their “fitness for duty.”

The HCEs and MLBs, who often do career derailment as a tag team, want to put the alleged-to-be-impaired docs through the paces. And so, under the suspicion of potential impairment, you’re now ripe for special testing, by the exclusively contracted fitness-for-duty specialist, the PHP. And they’re going to determine if you’re impaired, and if you’re going to need a special assessment by their “preferred” 4 day assessment center.³

And because everybody’s been asleep at the wheel while the MLBs and PHPs are running docs through their lucrative rehab penal system under the guise of impairment and concern about patient safety, nobody yelled “STOP!”

Everybody just went along with this extortion scheme and no one tied this RICO-style extradition to unwarranted excessive testing and surcharge under the ADA.

But once you see the applicability of ADA to this scheme, and you realize that “being regarded as” impaired or disabled automatically invokes protections under the ADA, you come to a whole new appreciation of its significance.

As Col. Potter from MASH might have monotonely phrased it “Now, not so quick, boys.”

“Want to regard me as disabled? Okay, let’s talk about what that means. We’re going to spell things out from here.”

Senators and DOJ Finally Beginning To See That Docs Are Getting Stamped As Impaired, Fleeced, and Fearful of Getting Help From Anyone.

The SenDOJ team, it seems clear from the letter, is finally beginning to recognize that docs are getting routed to MLBs and their selectively contracted PHPs, stamped as impaired, fleeced, and now though needed more than ever, are fearful of getting help from anyone.

But I would surmise they don’t yet know the extent of the abuse and the harms. Nor do they have an understanding of the matrix of violations committed by the MLB-PHP complex to accomplish the normalization of this medical for-profit penal system.

If they’re like those of us who’ve studied the matrix of orchestrated violations over the course of a decade, they too are likely to have the experience of stunned incredulousness similar to that of American troops liberating the hideous Nazi concentration camps in 1944-45.

Had these collusive MRTC entities been abiding by their statutory and fiduciary obligations to obey federal law, specifically here the ADA (but there are others that have been knowingly trashed as well) …

… and had states adequately overseen this now referral-dependent machine that it gave near total immunity to …

… and had medical societies that spawned this Frankenstein not been so complicit in its abuses …

… and had two national trade groups risen to the occasion to dare to speak about these abuses that were being committed by their members and harming thousands of physicians, even just having sufficient fundamental integrity to caution their members about this growing-out-of-control impaired physician referral machine …,

… we wouldn’t be here.

But here we are.

And fortunately, at last, there is a glimmer of hope that these three Senators, and this concerned Disability Rights Section of the US DOJ, have heard the chorus of alarm, and are beginning to see the travesty and are calling for urgent intervention.

Coming Up:

Some Representative Types of MLB ADA Violations and Directions on How to Get Your Complaint To DOJ In Right Away. DOJ Literally Is Waiting To Hear From You.

Continued in Part 2

1. Amongst them might be HIPAA; 42 CFR Part 2; Civil Rights Act; FTC Act; EKRA; RICO; Corporate governance and fiduciary duty principles ….

2. MRTC = Medical Regulatory Therapeutic Complex.

3. It may come as a dual surprise that a) PHPs may not be legitimate mental health entities - some deny even conducting diagnostic assessments even though they provide the MLB with a four page report identical in structure to a psychiatric consultation. And b) the model of a 4 day assessment is a contrivance of the PHP system. Such a model of intensive multi-day, multi-person diagnostic examination - at that one enhanced by polygraph examination - does not exist in the legitimate world of psychiatric practice.