A Practical Approach to Help Physicians Understand Their Rights Regarding "Fitness for Duty Exams"

The primary law governing FFDEs is the Americans With Disabilities Act ("ADA"). To many physicians' surprise, you DO NOT have to have a disability or the alleged impairment to be covered.

Knowing and Asserting Your Rights Under The ADA (and Other Laws) Is Critical To Protect Your Career

A weary doc searching in vain for information on “Do physicians have any rights … at all?” Unfortunately, the same answer seems to come up on everyone’s screen: “Still searching …” The good news is – YES, YOU DO!

When you come from an environment where wrongful acts are normalized, it’s hard to know what constitutes a wrong. And when there’s not much information out there helping you identify the rights that should protect you from wrongful administrative procedures like unwarranted fitness for duty exams (FFDEs), it’s understandable why you might wonder if you have any rights at all.

Violations? My rights? You mean, I have rights, including the right not to be ordered into a potentially biased medical evaluation, extorted, and risk having my career and livelihood harmed !?

That’s exactly how most docs (and, btw, other clinicians in healthcare) react when they’ve been treated unfairly by what they thought were law-abiding authorities.

It’s like we’ve all grown up in wicked, abusive homes and been told “Shut up! Don’t you dare question me or I’ll make life really miserable for you.”

“It’s just the way it is,” we end up saying to ourselves. “I’m counting the days till I get out of this nightmare. Meanwhile, I just gotta bear it ….”

So it comes as a surprise that a) you have rights that are spelled out in law; b) certain people in authoritative positions have been able to commit wrongful acts that overtly violate those rights – and get away with it; c) the rights specifically protect you from being harmed by particular wrongful acts by these entities; and d) the wrongdoer can’t continue to do the wrongs because, if their acts are legally challenged, they could be sued.

BUT … to halt the wrongdoing, you have to recognize that the act done to you was a wrongful act prohibited by law, and you have to assert your right and confront the wrongdoer under that law.

Rights Exist … But Physicians Don’t Know Them

Challenging the wrongdoer requires that the person wronged knows that a wrongful act has been committed, knows their rights have been violated, and knows how to take action to confront the wrongdoer about the wrongful act and the harm the act has caused or potentially will cause.

If you don’t know that the harm done to you (i.e. the adversarial job or career impact) was caused by a particular type of prohibited wrongdoing and that you have a right not to be wronged and harmed in that way, then you are living as though you have no rights. But when you can articulate the nature of the harm you’ve suffered, and know that it is a harm caused by a wrongdoer – be it a person or an organizational entity – doing a wrongful act to you, then you are uniquely empowered to defend your rights. You are at the beginning stages of recognizing that you have a right not to be harmed via this wrongful act, and that the wrongdoer can be held accountable and stopped from continuing to do the harm because of the very real possibility they could be punished with severe consequences for doing wrongful acts in violation of the law. And, in the case of the ADA, you are also legally protected from being retaliated upon for exercising those rights.

I recognize that this repetitive simplification may seem to some as ridiculously kindergarten-ish. But in terms of physicians rights, this is where many physicians are – completely in the dark about the rights that they have and MUST EXERCISE if they wish to protect their jobs and careers. And so it’s necessary for us to educate ourselves about these fundamentals.

This is especially so in medicine where physicians (and other clinicians) are routinely disabused of their rights – by their employing or credentialing hospital; or by their licensing board; or by that omniscient paragon of virtue and supreme authority on all things mental, behavioral, and ethical, the exclusively contracted so-called state physician health program that has become a virtual psychiatric wing of the state and its medical board.

A Shocking Revelation: The Ordering and Conduct of Your FFDE Is Covered Under the Protections of the ADA – Even If You Don’t Have an Impairing Disability

Here's an example of a deficiency in fundamental understanding of rights protecting physicians in regards to the conduct of fitness for duty evaluations (FFDEs). Let's say that a physician on staff has been alleged by an entity in authority to be performing his/her duties in an impaired or unsafe manner and has been ordered to submit to a FFDE. But the physician asserts, and provides supporting expert opinion, that no such impairment exists. You would probably be at a loss to come up with what law might govern such an order for a fitness for duty evaluation. And if I told you that the Americans with Disabilities Act (ADA) would apply, you would likely immediately reply “Why ever would I call upon the Americans with Disabilities Act when I am specifically asserting that I am not impaired and don't have a covered disability.” It turns out that you don't actually have to have the alleged disability and impairment that you are being considered to have.

The authors of the ADA knew that disability could be used as a discriminatory weapon to cause harm to a person’s employment. And so they included under the coverage of the ADA those who are "regarded as" having such a disability. The very fact that a physician is being alleged to have a disabling condition affecting the quality or safety of their performance affords them the protection of the ADA.

Under the ADA, Psychiatric Fishing Expeditions Are Prohibited

This includes the predatory four-day special evaluations done at MLB and PHP “preferred programs”

And one of those protections includes the requirement that the referrer have a reasonable basis for concern that the diminished performance is related to a disability, and have objective evidence to support that assertion. An additional protection is that such FFDEs are to be limited in scope to the immediate work performance questions at hand and consideration of potential accommodation and are not to be psychiatric witch hunts. Additionally, these occupationally mandated medical exams are protected with the same confidentiality as though they were HIPAA-covered records. In other words, they cannot be released to any entity other than the requesting employer without your explicit written permission.

Inherently Unbelievable Rights Deprivation

When physicians who are caught in the MRTRC web¹ tell colleagues, family, and friends about their inescapable ensnarement after being wrongly alleged to have an impairing mental illness or substance use disorder that then disqualifies them from continuing to practice or train, the reaction of many is disbelief. "Surely the authorities must know something that you're not telling me.” When they’re informed that they are forced to submit to a costly, non-neutral, highly invasive psychiatric evaluation, refused a copy of that diagnostic forensic evaluation report, and told they have to go along with whatever “the PHP” says or face the risk of being publicly ostracized as mentally ill or substance abusing (despite independent evaluations to the contrary) and being declared a danger to society, many people understandably look at them with incredulity, saying “you mean, they can DO THAT?” The rights abuse is so inherently unbelievable that the listener can’t quite take it in. “That can’t be. Nobody can simply take your rights away just like that.”

Schema Violation

When a listener is faced with hearing from an otherwise sensible, trustworthy person something so extreme as being the victim of flagrant, compound violations of a veritable matrix of state and federal laws, that listener takes one of three mental courses of action:

One: they tentatively take the scenario in as plausible, but it shakes the roots of their fundamental belief in the reliable fairness of things. This new unsettling recounting of major rights violations causes a “schema violation,” i.e. the way we have come to believe the world works. A schema violation is a disrupted paradigm, and the more fundamental the belief system is, the more fundamentally disturbing that disruptive new information is. This is because we base our understanding of the way the world works and the way we live in it on those fundamental schemas. Disrupting a listener’s core schemas (e.g. the trustworthiness of authority; beneficence; fairness; etc.) is like causing an earthquake in the mind. It rattles foundational structures. And sometimes it’s just too much to take in, for fear it’ll rattle one’s whole belief infrastructure. That someone is willing to at least consider such an unsettling recounting as plausible suggests that they’ve already come to a realization that, as disturbing as what you’re saying is, they see it as plausible, as believable, and are willing to entertain it. However, this category of listeners is in the minority.

Two: they reject it outright, concluding “That can’t be. What you’re telling me is too implausible; it doesn’t fit with my mental model. Therefore, YOU must’ve really done something wrong, and that’s why you’re in the mess you’re in, and you’re just not giving me the full story.”

Or Three: they take it in but put it in the “not knowing” mental space. They don’t reject it outright, nor do they wholesale take it in. They just hold it in a sort of mental parking lot and see if the truth will settle out. What happens with stances like this is that sometimes emerging events may help sway the listener to endorse the validity of what they were told (or conversely). But too often, the unresolved “schema conflict” containing the "unbelievable” just stays unresolved in the listener’s mind, and, since it doesn’t relate to any immediate concern of theirs, it just goes dormant without being resolved. In essence, it stays unbelievable.

Unfortunately for the rights-abused physician, the latter two scenarios are the more frequently occurring amongst those who haven't themselves directly experienced the MRTRC violations and harms.

“Can they really DO that?”

To the question “Can they really DO that?” the sad thing is that for the longest time, the only answer docs could come with was “Well, I guess so. They say they can. And other people seem to believe they can. And my lawyer says they can. And he shows me the law that sorta says they can.² So ….”

Once you finally grasp the reality that there might, in fact, be laws that delineate the prohibited wrongs that are being or have been done to you, a new pathway of hope and possibility opens up. But with it comes a significant amount of effort. Getting to a place where you can concisely convey in your narrative the specific wrongs that have been committed, the rights that have been violated, and how you're going to assert them can be an uphill climb. But if you are going to defend your rights, it is one that you must undertake.

Harms < > Wrongful Acts < > Laws < > Protected Rights

The biggest challenges docs then face when they’re up against what they believe may be abuses of some manner of their rights by the MRTRC powers, albeit rights that are often ill-defined at this stage, is getting these basics down:

• 1) synthesizing and concisely and coherently conveying the harms and wrongs that have been done. This is a huge challenge that entails:

  • being clear about what’s the exact nature of the wrongful act that caused the harm;

  • laying out in an understandable linear sequence the wrongful actions and the actors, and who did what when;

  • naming the diverse harmful outcomes of these wrongful acts;

• 2) determining the law or principle that governs that wrong and that establishes your rights; and

• 3) determining the best course of action to obtain justice for the wrongful acts that caused your harms.

You can’t get to “protected right” until you identify “prohibited wrong.”³ One of the best ways to nail down the likelihood of something being a wrongful act is if you experienced a harm and you believe the harm was unjustified. You may not be sufficiently knowledgeable at that point about the legal category of the wrongful act or the law that governs it. But identifying the fact of a specific harmful outcome and the process that led to it and having a hunch of unfairness is a good starting point.

For most physicians, even if they get to this rudimentary understanding, i.e. that a wrongful act by an MRTRC authority resulted in a particular harm, they’re stumped by the question “where’s it say it’s wrong?” We were never given a book of rights that iterates the list of wrongs that might be done to us by others in MRTRC positions of authority. Ironically, we were taught right ways of practicing our craft, and that deficiencies in these areas were punishable in some fashion. But we weren’t taught that those in MRTRC positions were also subject to right ways of performing their duties and could be called out for wrongful performance of duties (misfeasance or malfeasance) in their actions toward those subject to their jurisdiction. We basically had to take it on faith that leaders and institutions that govern us do no wrong, or at least that someone will oversee them and force the reversal of the wrongdoing before it causes harm. Clearly, a flawed premise.

So we who are harmed are left with the considerable challenge of defining the setting of potentially wrongful behavior and what laws and rules define that wrongful behavior and enforce the punishment and corrective for it.

While it seems lawyers may come to their understanding of applicable laws by winnowing down the “legal table of contents” to the specific law and its delineated wrongs and remedies, we as physicians are not expected to have that same breadth of knowledge of the legal landscape and the vast array of laws. So we have to go about it differently. We need to look at the common areas where wrongful acts and their harms frequently occur, and then try to discern the potentially applicable laws, rules, and principles that pertain to that set of identified wrongs in those scenarios.

With that different orientation in mind, and with our focus being physicians’ rights in their interactions with the MRTRC especially as pertain to FFDEs, it’s much easier to look at certain operational functions like FFDEs in the physician’s healthcare world where those rights might apply and the specific violations of which rights frequently cause major harms. We are basically working our way through the backdoor into the respective area of law that names and defines that wrong and establishes the attendant rights not to be harmed by another’s commission of that wrong.

To best understand how to apply a right to a given circumstance, it’s helpful to look at the common operations where a harm occurs that could be the direct result of a wrongdoing specified in a law. So we need to survey the landscape of MRTRC operations and consider what harms are frequently occurring and what wrongful acts within those MRTRC activities cause those harms. Knowing these, we can finally elucidate the laws that govern the wrongdoers and prohibit those wrongful actions.

To better understand this reasoning framework, here’s a non-MRTRC example:

Event: I am driving a car and another car sideswipes me and I end up on the side of the road with my car banged up, and the car that sideswiped me is long gone.

Harm: my car is damaged; I have neck pain. I have to get both evaluated. I may have to pay for all the harm done to me. Additional harms may unfold.

Wrongdoing principle: another vehicle can’t broach your lane and jeopardize your safety; should a collision occur, the vehicles involved have to stop to assess the damage, and await the police to investigate, determine its likely cause, perhaps issue a citation to the wrongdoer, file a report, and record the driver and insurance info.

Law: Reckless driving is prohibited; leaving the scene of an accident is prohibited as is failure to report.

Right: to be free of the threat of another’s reckless driving and in general to be protected against other drivers’ irresponsibility and harms.

Resolution: Enforcement may entail punishment of the wrongdoer, and litigation may be needed to effect one's rights and restore pre-harm wholeness.

Note the sequence: an event occurred with a likely wrongful act that caused a harm. The principle behind that wrongful act is defined in a law that a) defines the wrongful act; b) establishes my right not to be harmed by such a wrongful act; and c) provides a pathway to justice.

This is the overarching framework that will guide our present approach to applying the ADA to potentially wrongful acts, especially FFDEs, by MRTRC entities that have resulted – or could result – in harm.

Committing Legally-Defined Wrongful Acts Is Acting in an Unlawful Manner

The MRTRC entities are authorized to perform certain functions. And they must perform these functions in a lawful manner. If they do not do so, then they may be committing wrongful acts, i.e. acting in an unlawful manner that violates your rights and causes harm. In exploring the ADA and its relevance to MRTRC entities’ operational behavior, we should preferentially focus on certain functions where one’s ADA rights may be or have been at risk of being violated. Those violations can cause significant, even irreparable, harms.

The areas of function we’re focusing on here pertain specifically to physicians in the operational areas of licensing, credentialing, employment, education (i.e. training), and assessments of clinical and psychological competency. The MRTRC entities conducting these activities include health care entities (HCEs) such as hospitals, clinics, and group practices that employ or credential physicians; state medical licensing boards (MLBs); and so-called physician health programs and their entourage of questionably qualified subcontractors that conduct costly comprehensive psychiatric evaluations masqueraded as FFDE assessments, and provide treatment and monitoring.⁴

Our particular focus in this and the subsequent article is limited to the rights, wrongs, and enforcements defined by the ADA. It is not intended to be a complete iteration of all manner of prohibited behavior under the ADA. Nor is this to suggest that the ADA is the only law governing the MRTRC entities’ actions in these domains.

Rather, it’s intended as a means to familiarize rights-unaware physicians with the myriad ways that wrongs in the FFDE process can be committed by MRTRC entities that result in egregious harms. At first glance, it may seem excessively detailed. And yet, without this granular “drill down,” one might never know that these actions are wrongful and thus prohibited by law.

One can beseech physicians to employ the ADA anytime their rights are at risk of being, or having been, violated, and to alert the respective enforcement agency – EEOC or the DOJ – to the harms caused by their ADA rights violations. But to really enable physicians to do that, they need to know what aspect of the ADA was violated. They need to grasp the nature of the specific wrongdoing that was committed; how and why that wrongdoing is prohibited by the ADA; how it resulted in the harm they experienced; and what they need to do to exercise their rights and obtain justice under the protections afforded by that law.

A Law’s Inherent “Due Process”

There is a core principle here that I must emphasize, and in my experience, the majority of lawyers representing physicians in these alleged disability / impairment / “unsafe practice” matters do not seem to fully appreciate its significance.

First, by way of analogy, let’s examine a simple chemical reaction. A chemical moiety - an aggregation of molecules held together by electrochemical forces - can go through a predictable transformation in a replicable series of reaction steps. Let’s say the moiety starts as “A” and, through a specific and orderly sequence of chemical reactions from steps B through E, finishes as a different moiety “F.” It has to go through that multi-step sequence, and in that order, to transform from “A” to “F.” If a step is missed, or placed in the wrong order, that desired end outcome doesn’t happen. An ordered sequence must take place.

In the medical arena, if in conducting surgery, I fail to do a preparatory step, e.g. proper sterilization of instruments, or advance preparation of needed instruments or supplies, then the desired outcome – a successful surgery – cannot occur. Irreparable harm can result if I don't follow the procedural steps.

Disregarding established procedural steps not only may cause harm but may constitute wrongful acts and punishable violations in themselves, independent of the harm caused.

This notion of a wrongful action being punishable independent of harm is well established.⁵ In the more immediately applicable administrative legal domain, if a formal peer review is being conducted on a physician, certain procedural steps as identified by the Health Care Quality Improvement Act (HCQIA) must be followed. Breakage of the procedural steps amounts to a broken process, and constitutes a violation of that activity’s “due processes.” You see, “due process” is not limited to a courtroom. The law governing a process – whether a chemical law, a policy or bylaw, or a statute – essentially establishes the “due processes” to be followed.

As we know, violations of conventionally understood procedural due process can invalidate an entire proceeding, no matter how major the charges or elaborate the trial. These procedural missteps may constitute a violation of due process, a central tenet of fairness in legal proceedings, and can result in a deprivation of guaranteed rights that ultimately affect a person’s property or liberty interests. And it doesn’t have to take a major procedual gaffe to constitute a due process violation.

As we delve into the myriad procedural steps governing FFDEs under the ADA in the subsequent piece, understanding the critical importance of strict adherence to this larger “procedural due process” is particularly relevant in examining the myriad ways the fitness-for-duty examination process is frequently abused.

While you won’t find this iterative list of FFDE procedural steps verbatim in the ADA, the variously placed stipulations of the law combined with published agency guidance, court decisions, and erudite legal commentary spell out a protocol that is essentially a “best practices” sequence that follows an expected or “due” process. Call it what you wish, a mandated step-by-step protocol or a best practice that lays out the necessary steps to ensure fairness and thus non-discrimination, veering from the process amounts to a violation of that law’s defined “due processes.” And it is the deprivation of any granular procedural element of those FFDE “due processes” that may lead to a cascade of events that ultimately wrongfully deprives one of their property or liberty interests. And worse, violating these FFDE “due processes” can occur in a way that bypasses the protections afforded by conventionally understood legal procedural due process.

Lawyers’ Resistance to Confronting Elemental Procedural Violations

There is a pragmatic line of objection that I’ve heard from numerous lawyers pertaining to raising objections to "minor" procedural missteps. Raising these various procedural objections is “too costly, and too time-consuming.” “It’ll just anger the opponent.” “It’ll run up the client’s legal bill”… etc. From my vantage point, having interviewed in depth over a thousand physicians around their MRTRC cases (almost all of which have involved likely unlawful FFDEs), it is precisely in these granular ‘requisite step’ procedural violations where the harm occurs, and yet, because they are so granular and even opaque to the medical and legal community, they are considered nuisance issues, if detected at all.

Unfortunately, the rapidity of harmful consequences that ensue from these procedural violations are so gravely consequential and immediately involve further complex processes governed by other laws, that returning to these - what some might even call “micro-procedural” violations – is virtually impossible; they’re lost in the mix. It is for this reason that I will elaborate in the next piece on my assembled consolidation of the FFDE procedural steps in such granular detail so that the harmed physician and counsel can see how these subtle missteps and naïve assumptions about the offender’s good will and commitment to fair play can go unrecognized, wreak inordinate havoc, and lead to virtual legal powerlessness and irreparable career harm.

Next up: The Potential ADA Violations Checklist

1. MRTRC stands for “Medical Regulatory Therapeutic Rehabilitation Complex.” See “Systematic Abuse and Misuse of Psychiatry in the Medical Regulatory Therapeutic Complex” http://www.jpands.org/jpands2304.htm

2. And, well, anybody who says they can’t is never heard from again.

3. Essentially, a “protected right” establishes the right not to be harmed by another’s wrongdoing of a certain nature.

4. It would seem apparent that an entity that conducts FFDEs on an exclusive referral basis and provides treatment and/or years-long monitoring for the newly diagnosed condition has major inherent conflicts of interest. And thus their initial comprehensive psychiatric evaluations, at that masqueraded as ADA-permissible FFDEs, could potentially be seen as unlawful medical exams. So too the ADA culpability of the referring entity for permitting unlawful medical exams to occur – be it a hospital, MLB, or PHP. (See: Atty William Goren’s blog for Direct Liability for a Title II Entity Delegating Their ADA Responsibilities.

5. A review of just about any state’s Medical Practice Act (that governs the MLB’s operation) specifies physician accountability for proper behavior independent of whether harm occurred.