Quick read:
Answers: Yes, and Yes. Docs are fearful of getting mental health help because it could be harmful to their careers. This harm is only possible because of state medical boards and physician health programs’ willful violation of the ADA committed in an environment devoid of requisite state oversight while these entities enjoy immunity from suit. The dangers are not just in MLBs’ asking impermissible questions pertaining to one’s mental health and substance use history. It’s what happens after you answer in the affirmative. Answering honestly can get you sent into the rapacious PHP endless monitoring program and essentially wreck your career. Answering dishonestly can get your license revoked for being untruthful on your application. This is putting docs in an unconscionable bind. Thus, perhaps the most reasonable choice docs can make, although dangerously self-neglectful, is to avoid seeking help at all costs. Should this be happening? No. Is this what we want for our doctors? No. Are medical boards and PHPs going to change on their own and honor the letter and spirit of the ADA? No. What can you do? Understand the various components of illegality that feed into the rapacious “impaired physician treatment” funnel starting with 50% of boards asking impermissible questions on licensing applications and renewals which then compel them into an involuntary psychiatric evaluation often done under false pretense at the PHP. If your state board is asking ADA-impermissible questions, get ADA-knowledgeable guidance, enlist the attention of your state medical society, consider challenging the board about its legality in asking these questions, and onsider filing a complaint with the appropriate state and federal authorities. Be acutely aware that these entities, untethered from state oversight and accountability, do not like to be challenged. Understand your rights to raise ADA concerns, whether for yourself or on behalf of a class of affected individuals, and your rights to be protected from reprisal. With the COVID-exhaustion crisis superimposed upon a preexisting 50% burnout prevalence, now is the time to take action and demand accountability.
“Are punitive rules forcing doctors to hide their mental health problems?”
So reads the headline in yesterday’s edition of the Guardian (UK-based, US edition). Journalist Sadia Rafiquddin writes about the combined impact of both COVID and burnout on physicians’ mental health and yet notes their pervasive reluctance to seek any form of help for fear of it causing irreparable harm to their careers.1
Imagine! You’re an extraordinarily trained physician, truly a precious professional resource, and you’re going through the rigors of extraordinary occupational stress which alone qualifies for designation as trauma-inducing work, and you can’t get help to deal with the impact of that work for fear that doing so will damage your career. That’s like going into a profession where half the workers will develop job-caused angina, a sign of dangerous heart disease, and which will predictably kill a significant number of them at twice the rate of the general population, and you’re told that if you dare see a doctor, you could be fired, not just from your job, but from your profession - worldwide! And that if you do so, you’ll be publicly labeled as a loser, as a weak heart who can’t take the rigors of the profession.
Is that insane, or what?
And you wonder why physicians don’t get help?
Can’t Doctors Get Help Privately?
But surely they could keep it private, couldn’t they?
Think again. By law, yes, they should and do have that right. And there are several laws I’ll touch on subsequently which by all rights should protect them.
But what if you have an entity such as a state medical licensing board which in some cases may be only posing as a legitimate state agency which not only doesn’t abide by that law but which apparently has zero internal controls to remind it of its obligations, and zero external oversight and accountability to compel it to do so?
What you have there is an administrative state Frankenstein which is now running loose. And states are likely afraid to take ownership of it now because the harms and civil rights violations resultant from their failure to oversee this monster will be glaringly apparent. And medical societies are afraid to take ownership of it because they’ve either been complicit or they too are afraid of reprisal by the MLB gang or even of their own national medical association which itself has turned a blind eye.
But What About The Americans With Disabilities Act (ADA)? Doesn’t That Prevent Boards From Asking Invasive Questions That Ensnare Docs?
Guardian journalist Sadia Rafiquddin makes reference to a vitally important article by Dr. Pamela Wible and (then medical student) Arianna Palermini which examined the licensure questions asked by state medical boards pertaining to issues related to one’s mental health.2
Now, the ADA is not a new law; it’s thirty years old. State medical boards have long known what licensure questions are permissible by law and which are not. In its Amicus brief in the Jacobs NJ Medical Board case cited below, the USDOJ wrote:
In addition, the Board's inquiries into an individual's history of disabilities can have a more insidious discriminatory effect. Concern over the Board's inquiries about diagnosis and treatment for mental illness or substance dependency may deter physicians or licensee applicants from seeking counseling for mental or emotional problems or treatment for substance disorders.
But when you have no governmental oversight and you’re completely free from the risk of litigation, and most defense counsel dealing with administrative law are apparently ignorant of ADA’s applicability and its legacy of prevailing rulings , you can do what you want.
That is, until the gig’s up.
But the gig’s not up until you confront the abuses and demand that they stop. And that means that you have to understand the legal basis for asserting that they are in violation of the law.
Which then makes one wonder …
Beyond simply the impermissible licensure questions, can the ADA be more generally employed to protect physicians against abuse of their rights by medical boards (MLBs), so-called physician health programs (PHPs), and hostilely motivated sham peer review entities?
Over the past year, I and colleagues associated with CPR have studied the critical relevance of the Americans with Disabilities Act.3 4 And it would appear that, despite full awareness of its applicability to physicians and all other clinicians in healthcare, a significant number of state medical boards have seemingly elected to ignore it.
Worse, many of those who work on the individual physician side of license defense have not been aware of its direct relevance and have all but taken the boards’ ways of doing things as the irrefutable law of the land. This is quite problematic for several reasons. For one, the field of administrative law is not especially lucrative for lawyers representing physicians as there is no large monetary reward to be had from compensatory and punitive damages as there are for plaintiffs in malpractice cases or from large qui tam whistleblower bounties. So the physician is stuck paying out of pocket to take on the administrative state Goliath MLB. And generally, after years of effort and perhaps hundreds of thousands of dollars in legal fees, the most they can hope to get back is their right to practice. Having interviewed at length hundreds of physicians, what I’ve seen is that most have been left financially, reputationally and psychologically hobbled by the ordeal, the impact of the distress profound and embittering.
Yet another trend we have become aware of is that in that minority of circumstances in which the physician and counsel are able to persist in their claims of denial of due process or breakage of one or more laws by the board or PHP in its abuse of powers, the case suddenly drops from visibility. It appears that after putting the physician through this Kafkaesque ordeal, as the case may lead to suit and potentially go to trial with considerable discovery, the settlement that is reached with the plaintiff physician may offer some form of compensatory payment associated with the return to practice but will nearly invariably be tied to no admission of wrongdoing by the board and a strict non-disclosure agreement (NDA). Thus, there’s no record of the board’s transgressions.
Even worse, though posing as legitimate state agencies, it’s entirely possible that some medical boards may actually be operating as trade associations. In North Carolina for example, the medical board operates with no governmental oversight whatsoever. Not only was this documented by the state auditor, a CPR colleague shared with me his letters received from the offices of both the Governor and the Attorney General which indicate clearly that neither exercises any oversight or even regulatory authority over them. How is that possible? A “state agency” with utterly no state oversight or accountability?
This is shocking on multiple levels, not the least of which being that it begs the question of how can such an organization (now billing itself as a “public organization,” whatever that is) enjoy sovereign immunity. But in this matter of compliance with law, and specifically the ADA, when one has an agency operating behind the facade of governmental identity and yet disregarding federal law, what is an individual physician to do? The dilemma is heightened even further as, were one to sue in federal court, the board might argue that it enjoys sovereign immunity and counsel and the court, both being duped by deceptive assertions and their own erroneous assumptions, would have its suit dismissed. Now that’s quite a dilemma.
Can The Medical Board Just Ignore The Law?
So, how is it possible that a law can just be ignored? Is the law applicable or not? The nearly thirty-year-old ruling in NJ Medical Society v. Jacobs and NJ Medical Board certainly seems to establish that the ADA is clearly applicable.5 Have MLBs and their national association FSMB simply ignored it, hoping by not referencing it that it would just go away? Or have they hoped that by inserting their own idiosyncratic language (e.g. “potential for impairment” et al.), they could bend the meaning of the ADA to their desire? Apparently so. FSMB’s policy on physician impairment is so rife with ADA incompatibilities as to make one wonder if they ever consulted with counsel on its drafting.6 Is it possible that they’re willfully ignoring ADA concerns?
Now, why doesn’t the US DOJ step in and do something about this? A good question. From this non-lawyer’s perspective, my understanding is that they don’t go looking for trouble. They’ve got truckloads of stuff to handle already. And besides, they’re like the epidemiological wing of the CDC or the FDA - they only know about problems with disease outbreaks or medication adverse effects if they receive reports about them. Out of sight, out of mind. These abuses are not even on their radar.
Dr. Wible’s piece thoughtfully gathered each state MLB’s questions as they related to ADA-permissible questions regarding one’s mental health history. (They did not examine the substance use/abuse-related questions as mental health was their primary focus.) Then they used a variety of criteria to assess the permissibility of the question as written, examining it against the criteria elaborated by the DOJ in confronting other organizations’ use of impermissible questions. And lastly, they then assigned an ADA compliance score to each state.
Now, don’t be lulled into believing that a good score (A or B) makes that state MLB a group sensitive to these concerns. It just means they didn’t ask overtly impermissible questions.
But brace yourself. Nearly half of all state MLBs scored C or lower. Yes, some downright flunked. Which would mean that about half of all states’ medical boards are STILL asking dubiously permissible or overtly impermissible questions. In other words, by asking such questions, they are violating the ADA.
So Why Is Asking ADA-Impermissible Questions Such A Big Deal?
“So what?” you might ask. And if you’re an offending medical board, the “so what” question has a taunting connotation – “so, whaddya gonna do about it?”
Let’s take the “so what” question first. Why’s this such a big deal?
It’s important for a number of reasons above and beyond what the US DOJ cited in the above referenced Jacobs case.
Why should this group of people, your state MLB, know anything about your protected health information (PHI) that is fundamentally none of their business? The challenge with sharing sensitive medical information is that you don’t know who has access to it or when and specifically with whom it is shared. Surely, you might think, MLBs are subject to HIPAA! Wrong. Are there other privacy laws that might pertain, whether at the state or federal level? Sure. But if no one is overseeing the board, and they’re immune from suit, and even one’s medical society and local counsel aren’t raising an objection, then they can just about do and ask whatever they want, laws be damned.
But, it’s not just about obtaining the information and how private it is. It’s what they do with that PHI. If you answer positively in some way, they then believe they have the right to request your medical records as far back as they wish, and then to demand that you be “interviewed” by the PHP or its designees i.e. forcibly examined via an invasive psychiatric examination or some fitness-for-duty variant. And that exam can be as confrontative and invasive as they wish, unquestioning cooperation with which is required under threat of license revocation.
Now if a compulsory state-ordered psychiatric exam – the equivalent of an involuntary civil commitment, at that one whose results are shared with anyone they so choose and whom you are prevented from knowing – doesn’t unsettle you, perhaps you should also know that the PHP examining you is not subject to the confidentiality provisions of HIPAA, or so they claim. The cover under which they’ve orchestrated this HIPAA freedom will be explored in a separate article.
Now if that’s not disturbing, consider this. You may not be able to get a copy of your PHP evaluation which has been shared with the MLB. How is that possible? We’ll explore that in a follow-up article but suffice it to say here, not being able to obtain a copy of your forced psychiatric diagnostic evaluation which is not subject to confidentiality protection should be cause for major concern.
But not only is your evaluation report not obtainable, your right to contest its findings also does not exist. Thus the PHP’s diagnostic report (which one PHP claimed to US DHHS was not a diagnostic evaluation report despite it being indistinguishable from a psychiatric consultation) becomes infallible.
And if that were not bad enough, consider this: because of the PHP’s exclusively contracted relationship with that MLB (which in some states pay a significant part of that PHP’s operating budget) and because state statutes empower the MLB to order your immediate compliance with that PHP’s findings and recommendations (yes, whose diagnosis of you it refused to reveal to you), your non-compliance or even legal challenge to its authority could cause you to face immediate and public suspension, indelibly reportable to the National Practitioner Data Bank.
Alas, there’s more. Indeed, you may be ordered on the basis of the PHP’s assessment and the MLB’s order to go wherever the PHP says you have to go because, their reasoning goes, only they are knowledgeable enough to have you evaluated at the “preferred program that really understands physicians’ issues.” They don’t share with you that these same preferred programs advertise heavily in their convention materials and may rely on the PHPs as a main source of referrals. Keep in mind, at $5,000 and up cash on the barrel, these are not only lucrative referrals, they’re just the beginning of the pipeline. You’ve probably heard the term “lifetime value of a client.” Once ensnared, consider yourself a lifetime client. Nor do they inform you that some of the preferred programs happen to be run by former PHP directors or other officers of their national association. They don’t seem to recognize a potential ethical problem with this nor of laws prohibiting self-referral. Nor do they share with you that some of the urine tests they use to arrive at their diagnoses are known to cause false positives and that the use of such tests in such an employment-related context is strongly advised against by the US Substance Abuse and Mental Health Services Administration (SAMHSA). But hey, when you’re designated as immune from suit under the pretense of conducting “peer review” while overtly denying that you’re conducting diagnostic psychiatric evaluations and you’re essentially a wing of the medical board which claims near total immunity from suit, you can do whatever you want.
The board will inform you that you have no right to refuse the PHP’s “recommendation” now MLB’s order. And indeed some states’ statutes seem to authorize this, themselves naive about the board’s benevolence or ignorant of the cascade of due process and other violations which has preceded this involuntary commitment and forced exile out of state to be evaluated at the “preferred program.”
But even worse, should you comply with the special assessment at the cash-only preferred facility, you will discover that you cannot challenge the now definitive diagnosis and treatment recommendations of the special PHP-preferred program and that you either go along with that or sacrifice your license on the alleged and imminently-to-be-made-public basis that you’re dangerously mentally ill or substance-abusing and a threat to society.
So you see, asking impermissible questions on MLB initial and renewal applications is not simply a bad thing because it’s impermissible under the law and deserving of a slap on the wrist. It’s bad because it’s treacherously dangerous to your livelihood and your own mental health if you allow them to ask such questions. Because there’s a high likelihood that you’ll quickly be led down a funnel from which there is no escape.
Why Isn’t Anyone Challenging This? Why Isn’t the State Attorney General or the US DOJ Investigating?
Indeed! So why isn’t anyone challenging this? Why isn’t the DOJ enforcing the law? Extremely important questions.
First, to challenge it, you have to know that the law exists and what your rights are. Normally, you wouldn’t expect a state agency to violate the law or to be allowed to do so on an ongoing basis without severe repercussion. Understandably, you would certainly expect that a legitimate state agency would be subject to immediate discipline for its violation of protocol requiring abidance of state and federal law.
I guess it should come as no surprise that if there’s no oversight and no accountability, the MLB, allegedly a state agency, knows that it can get away with violating the law with complete impunity.
Second, to bring it to state and federal law enforcement’s attention as the career-lethal RICO-like enterprise it is, you have to have a sufficient number of people reporting these violations. But to whom? Well, don’t waste your time reporting it to your MLB because if my and colleagues’ experience is any guide, they just turn a deaf ear. Again, the predominant motif of their behavior resembles that of a bully. “Yeah, so whaddya gonna do about it?” Because they know that a) you have to find a lawyer who’ll represent you and that costs considerable money; b) even challenging it legally, it’ll most likely be dismissed on any of a slew of ready rationales, e.g. your “not having exhausted all administrative remedy” predominant amongst them. And c) they also smugly know that they carry the same strongman imago as gangsters conveying the message that if you mess with them, you might score a punch or two in the short run, but they’re going to make life very difficult moving forward, not least by having “anonymous complaints” arise, even originating (also anonymously) from the confines of the board itself. This thuggish behavior should not be tolerated by any state.
A Hell of a Conundrum, Eh? What to Do?
First, become aware, learn more and study the issues thoroughly. Arm yourself with knowledge and connect with knowledgeable others. Share your discoveries and approaches. You don’t have to agree with the above and I have little doubt that some who sit on ethical medical boards and PHPs (and yes, there are some) will take great offense. I’d caution those who do take offense to pause in their reactive vituperation and examine whether there might be some MLBs and PHPs (e.g. the 50% who are asking impermissible questions) which are acting illegally and, if so, take a moment to reflect on what your ethical duty is to report such behavior both to your national association and to the US DOJ. Simply assuming a saintly martyr stance expressing hurt for not being recognized for all the good you do misses the point while also diverting attention away from your responsibility.
And if you do believe that these concerns are valid, then become vocal about it and take action. Study it further. Bring it forward – to your medical society, your physician peers, lawyers, journalists…. Ideally, once you’re sufficiently grounded in these issues, get it on to the agenda of your state and national medical societies’ meetings. Get them to use their clout to investigate these abuses of physicians’ rights. If the fact of this wrongoing is indisputable and they’re still unwilling to take a stand, you might want to examine whether that’s a club you really want to be a member of. Because it’s either a club of complicity or a club of cowards.
Second, if you are in a litigation or pre-litigation situation which might offer ADA protection, get expert ADA MRTC-knowledgeable counsel on board, even simply as consultants to your primary counsel, who are not only knowledgeable about your rights under the ADA and other laws, but who are willing to take on the powerful MLBs and their MRTC network.7 If you do that, make sure that you enlist allies and observers in that fight.
Third, if you’ve been deprived of your rights under the ADA and the MLB is offering to settle, no matter how tempting, do not do so under any NDA. You should not be extorted to remain quiet about their wrongdoing with their dangling your right to resume clinical practice. And remember this: not only is the ADA powerful and potentially applicable to so many physicians’ cases where there is a record of disability, a current active disability, or being “regarded as” disabled (read here “potentially impaired”), it’s threatening to the board. But also realize this: you have a right to pursue your rights and retaliation against you for pursuing your rights under the ADA is expressly forbidden and punishable.
And lastly, if you concur that you’re in a state which has a C or below rating, and you’ve studied the wording of the questions and are clear on the basis for your suspecting a violation, consider filing a formal complaint to the US DOJ (see link below) with a copy to your state’s US Attorney raising the question of potential violation of the ADA via impermissible questions being asked on the MLB’s application. By the way, the very same prohibitions are applicable to credentialing and employment applications.
Consider This Action Approach
While the mechanism of filing such a complaint will be covered more fully in a separate article, consider this strategy:
Review the Wible article and see where your state falls.
Examine your state’s licensure questions yourself or perhaps in a study group and determine if they meet permissibility rfequirements according to standards as established by ADA. If they do not, then pursue a line of inquiry that may - may - include the MLB, the state AG, the state auditor, the state’s US attorney for civil rights, and the US DOJ. The notion of informing the board has unique legal advantages should they decline to act.
If you’re in an employment situation where your employer (including the hospital which employs you under a salary) is asking apparently impermissible questions, consider seeking the input of the EEOC (Equal Employment Opportunity Commission) which is the agency responsible for enforcing ADA compliance for all Title 1 entities. Most corporate healthcare employers are subject to Title 1.
It is always advisable to get the opinion of a knowledgeable attorney well-versed in both ADA and medical board workings. You’d look in the areas of employment, disability, and healthcare law.
Let me again stress, I am not an attorney. I do not and cannot give legal advice. That said, it doesn’t take a JD to recognize a glaring federal law violation any more than it takes an MD to diagnose a swollen hemorrhoid.
Change doesn’t occur just because you wag your head and put your hands on your hips and exclaim “well, that just shouldn’t be.” And change certainly doesn’t take place just by wringing your hands and saying you’re helpless.
Change takes place because you get involved, you arm yourself with knowledge, and you do something active to make the necessary change take place.
Recognize That Violation of the ADA Is a Grievous Civil Rights Offense.
In the event that you’ve done your homework on the impermissibility of the licensure questions and are ready to file a complaint with the US DOJ Office of Civil Rights pertaining to an apparent violation of the ADA via impermissible licensure, credentialing, or employment application questions, here’s the DOJ online complaint link: https://civilrights.justice.gov/report/
If you do so, make sure you save your digital copy of your filed complaint. Be sure to subscribe to updates from CPR or to this Physician Interrupted newsletter on Substack where you’ll find additional exploration of MRTC concerns and the applicability of other laws which may help defend your rights.
Meanwhile, stay well, become knowledgeable, remain hopeful, and get active so you can make a difference. And one immediately meaningful way of doing that is by forwarding this article or its link to as many peers and change agents as possible. Consider reposting it on your own social media accounts. The more people who know about these issues, the more likely change will occur.
And please, if you disagree with something I’ve posted here, I want to hear your concern. If any MLB or PHP or people from their national organizations FSMB and FSPHP would like to enter into a live audience-interactive webinar discussion with me, I’m happy to arrange that. And likewise, I’m happy to be on any you might invite me to. So far though, despite numerous invitations, I’ve not had any takers. //
Physician-Friendly States for Mental Health: A Review of Medical Boards | Pamela Wible MD re-accessed Mar 10, 2021, at: https://www.idealmedicalcare.org/physician-friendly-states-for-mental-health-a-review-of-medical-boards/
An excellent reference (and well cross-referenced) on all things ADA is to be found at the blog of Attorney William Goren who wrote the book for the ABA entitled “Understanding the Americans With Disabilities Act.” This particular post has immediate relevance to MLBs and PHPs: https://www.understandingtheada.com/blog/2019/07/13/medical-licensing-boards-physician-health-programs-ada-compliance/
CPR - The Center for Physician Rights https://www.physicianrights.net
See: United States District Court For The District Of New Jersey, Sept 30, 1993. Memorandum Of The United States As Amicus Curiae In Re Civil Action Case No.: 93-3670 (WGB). The Medical Society Of New Jersey, Plaintiff V. Fred M. Jacobs, M.D., J.D., and The New Jersey State Board Of Medical Examiners, Defendants.
MRTC = Medical Regulatory Therapeutic Complex. See: Systematic Abuse and Misuse of Psychiatry in the Medical Regulatory-Therapeutic Complex. Robert S. Emmons, M.D. Kernan Manion, M.D. Louise B. Andrew, M.D., J.D. Journal of American Physicians and Surgeons Volume 23 Number 4 Winter 2018. pp 110-114. link: http://www.jpands.org/vol23no4/emmons.pdf
Well, nearly one week later, there's no apparent eagerness on the part of FSMB, FSPHP, AMA, or APA to be my guest on a public audience-interactive webinar as we explore these issues. And, truth be told, I can't say that my email's buzzing with invites from them for me to be a guest on theirs.
So, would you like to have a real discussion about these concerns? Or would you just like to keep issuing trite pseudo-empathic statements about how you're concerned about physicians having emotional distress in the context of burnout and their frontline COVID war-weariness and you really want to "reach out" and get them involved with their RICO-like PHP which will assist them all the way to career destruction?