Are the Newer State "Safe Harbor" Laws for Physicians' Getting Mental Health Care Really Safe?

If that's a safe harbor, I'll stay at sea, thank you.

A not-so-safe harbor post-hurricane Katrina.

New state laws are being passed which give the comforting appearance that, in this era of extreme healthcare provider stress, there's widespread concern for physicians' mental health and their having access to getting the help they need so as to continue to do their desperately needed work.¹

“Safe Harbor” Mental Health Laws Are NOT Safe.

The laws I’ve studied seem to be motivated by a genuine concern, governors and legislators apparently having read abundant stories of physician distress and their justified fear of getting help. But there’s a sort of perverse reasoning at work in their rationale. Because physicians could be harmed by state medical boards asking almost certainly ADA-impermissible questions about an applicant’s mental health, and as a result of insanely intrusive laws which mandate turning in to a medical board and then its PHP a physician who may - may - have a personal mental health problem that may or may not have any impact on their work performance or their capacity to practice their profession, legislators thought they’d write a law sparing them that danger saying “don’t worry, we hear you, you can now get mental health care help completely free of worry by the board or PHP. You can talk your heart and soul out, have a meltdown, confide all you want, so that you can be the best, happiest doc you’d ever want to be. We really love you and value all that you do.” . . . “a-hem …”² 

But . . .

If you happen to have a diagnosis - ANY, well, game's off buddy. Nobody said anything about you coming in here with your dangerous mental illness. No siree. What state wants a bunch of mentally ill docs running around, for chrissakes! If we determine that there's anything 'significant' going on, and you know what we’re talkin’ about, then we've got to turn you in to the state. ‘Cause nobody wants no impaired docs running around the state dangling their stethoscopes and being dangerous to our people.”

Safe Harbor … to Dry Dock

So if I, an everyday stressed-out doc, think maybe the work’s taking a toll and I'm getting big league depressed, or question whether I'm drinking too much to cope with the stress, or have passing thoughts of doing myself in … if I share these with a therapist under the “Safe Harbor” doctrine and the therapist has 'concerns,' (which by the way is what they’re supposed to have, for godsakes) my boat goes straight out of that safe harbor ... into drydock.

Maybe permanently.

And From Dry Dock … to Boatyard Foreclosure Sales

I may even have to sell it to pay for the lawyers to get me out of drydock and free me from the medical regulatory therapeutic complex’s death grip. Which, of course, is a bit self-defeating. But we already know that that investment will be futile. Because it’s now clear that the entire thing’s a rigged deal designed to prevent due process while at the same time bankrupting the doc. It’s essentially a systematization of violation of substantive due process. This and that statutory stipulation about impairment and discipline; board-mandated invasive psychiatric exams done under false cover as “peer review” or “fitness for duty exams” performed by unlicensed medical corporations carrying no malpractice insurance; these PHPs denying they’re conducting invasive psychiatric exams in violation of ADA; then referring downstream to their “preferred” cash-on-the-barrel $10,000 4-day evaluation programs; then mandated compliance with whatever the infallible PHP orders with no right to contest ….³ The doc will NEVER get free of this entrapment. They are marked - and marred - for life. It brings Kafkaesque nightmare into a new dimension. To date, I have not found one lawyer who sufficiently grasps the breadth of this dystopian matrix and has a definitive comprehensive approach to halt its abuses and restore their client physician’s life to pre-assault wholeness. The cases typically drag on for years.⁴

Boat Goes … Captain Stays in Human Drydock

And so the lawyers get the boat and leave doc, the captain, in drydock. Captain will never go to sea again. Captain will be lucky if s/he can even afford to get on a swan boat in the Boston Public Gardens. And even then, just recalling the term "safe harbor" or getting anywhere near a boat will likely cause immobilizing PTSD. I write this only partially in jest.

Perhaps this is the sickest and most condescending attitudinal component – here’s the never-verbalized internal dialog accompanying the civil rights-deficient reasoning in this dangerously flawed legislation:

Well doc, you may not like it, but at least you're getting the treatment you need ... and the people of [name your state] are safe from the danger of YOU with your god-knows-what’s-lurking mental illness or potential impairment. 

Followed by (with meaningful, pseudo-empathic head-nodding)

“We really hope you get better soon so you can do the work you trained so long for and that we know you loved.⁵ Of course, you understand that we’ll need to closely monitor you for 5 years to make sure you’re really safe to practice when you “get better” (and it’s up to our infallible team of experts at PHP to determine when you’re “better”). After all, we’re just trying to protect the safety of the people of [name of your asinine state]. and we want to see that you get the best help available.”

Now Doctor, Don't YOU Feel Safer?

When you look at this more closely, what you see is a state legislature’s complete avoidance of doing anything to curtail the flagrant invasiveness of medical boards asking what are explicitly ADA-impermissible questions in the first place, Nor are they confronting and holding accountable the rapacious Siamese-twin-tied-to-the-board Physician Health Program from conducting such ADA-impermissible exams and then making insider downstream referrals for unwarranted costly four-day “evaluations” and extended "treatment,” compliance with which is then ordered by the board abusing its police powers under threat of immediate license suspension and public humiliation, being paraded around as the “troubled” doc.

Nah. Better not go there. Don’t want to intrude on their turf. Surely they know what they’re doing. Let’s let them continue to call the shots.⁶

So what you have are states whose governors and legislators are quite naive, unaware of the extremely harmful law-violative behavior by these entities but whose lobbyists do a hell of a lot of schmoozing to craft laws that meet their exact specifications and that don’t constrain in any way their invasive overreach or open them to litigation. In essence, the boards and PHPs and their national trade groups FSMB and FSPHP write the bills which are crafted to look like substantial law that affords new protection. But it’s law that’s not only a facade of benevolence and compassion and safe harbor but one that actually worsens physicians’ safe access to help.

When you study this new Delaware law, you might be curious why it had to be created in the first place. Instead of having had to create this new “Safe Harbor” law (with its own vagueness and thus defects), the legislature could have just put long overdue restrictions on the board’s and PHP’s illegal intrusiveness and inserted an oversight body to make sure they comply with federal law and due process requirements. But, no. That would get messy. And it would anger the board and PHP complex because the very last thing they want is oversight and accountability and any constraint of their overreach. They want to be the “ultimate determiners of impairment.” And to be the unquestionable definers of what constitutes work-relevant impairment. And they want uncontestable authority not only about determinations of impairment but of "potential impairment.” ⁷ (Yes, you can get rounded up and thrust into the maw of this dystopian machine on “concerns about potential impairment.” Do you know what it takes to refer someone for a mandatory evaluation by PHP? One anonymous allegation of seeing a person wobble in their gait; believing you smelled alcohol on the person’s breath; crankiness; bleary eyes; an angry comment …. I’m serious.)

So, giving the governors and legislators the benefit of presumed naivete and absence of complicit motive to creatively deprive physicians of their due process through this crafty medicalization of discipline, I suspect they saw this law as an expedient solution. They were probably thinking, “let’s just bypass that messy birdsnest and write a new law saying that physicians can get help and don’t have to report it to the board or the PHP.” Seems creative, clean, efficient. But that deft move lets governors and legislators continue to ignore that they’ve been allowing the board (and its exclusively contracted PHP) to violate the ADA and other federal laws with complete impunity while causing irreparable harm to physician licensees who are deprived of virtually all due process rights.

(You might be shocked to learn this. Due process refers to fairness in a legal process.⁸ Medical evaluation and treatment is not a legal process. There is no comparable ‘due process’ concept in medicine. So you can shake your skinny fists to heaven all you want. But it’s all for naught. Once the board has medicalized its disciplinary process, all expectations of fairness are off. Docs are left to rely on the ethics of the profession of medicine. But how’s this for another kicker: PHPs claim they’re not medical entities conducting diagnostic exams. Even though they clearly conduct invasive psychiatric exams.⁹ Wrap your head around that!)

And so what you get is this deeply defective “Safe Harbor” workaround law that’s reflective of an avoidance of the legislature’s insistence on active governmental oversight and of aggressively confronting boards’ and PHPs’ systematic violation of the ADA. And it’s not as though this is a new violation. It’s been an ongoing violation for the past 30 + years which has resulted in countless physicians becoming hopelessly ensnared in the board’s and PHP’s insider network of faux independent evaluation and faux treatment rehabilitation centers. In fact, it’s fueled the growth of that enterprise and enabled them to run what is essentially an exclusive state-sponsored “impaired physician treatment” monopoly.

Go To a “Safe Harbor” Mental Health Clinician?

Think again. It’d be like going to the IRS and confiding your creative tax shelters and expecting them to be awed.

Clearly, it’s unsafe.

But in Delaware (and I’ve seen it in several other states), it’s perhaps even more dangerous as there is apparently a mandatory “physician impairment reporting” scheme. That’s right, you’re required to report someone whom you believe to be or even feasibly could be an impaired physician.

So sure, it's safe to get help. Just not safe if you actually have an illness that a therapist feels meets criteria for “impaired” or could even conceive of as being “potentially impairing.”

(Governor Carney and Delaware legislators - do you really believe that this is going to encourage physicians to get help? Deputizing the mental health profession and turning them into undercover state agents? I mean, really?! Because, if so, I think that one of us may be having a break with reality and I don't think it's me.)

Take a closer look at the Delaware bill creatively entitled "Promoting Physician Wellness by Erasing Stigma and Removing Barriers to Mental Health Treatment Act."

Right now, several of us at CPR are beginning to study these newer "safe harbor" laws that propose to enable docs to get mental health help supposedly free of the intense scrutiny of the board and PHP, a Siamese-twin Frankenstein monster that the state itself created.¹⁰

What we’ve seen is that they're poorly thought out and are thus very dangerous traps. I also question their statutory and constitutional legitimacy and thus their enforceability. In fact, I would argue that any mental health clinician who obeys this mandatory reporting scheme is in fundamental violation of their professional ethics and likely of various federal and state confidentiality laws and ought to be sued for such violations.

Therapists and Other Mental Health Counselors: Review Your Professional Codes of Ethics

You need to realize that you've been put in a no-win bind by the state: betray your professional ethics or risk losing your license for not reporting. Clearly it's untenable and you have no choice but to fight it through your professional association as it is turning you into a covert state agent and your field into an untrustable profession.

But even at a more personal level, if you go along with it, you're not only opening yourself up to suit. You will have willingly chosen to dutifully obey without question a state law which may both cause you to violate federal law and run counter to your professional ethics. And, by the way, if it turns out that you did violate your professional code of ethics, no matter that you were told via defective law that you had to do it by a state authority, there is every reason to pursue action to have your license restricted and your certification in your counseling specialty revoked. Deviation from professional ethics is considered a violation of professionalism and is actually one of the charges boards level against clinicians.¹¹ 

And therapists: if you don’t take this encroachment on your turf and assault on your professional ethics as a fight that you MUST take on, then you really shouldn’t be in the profession, not only because you’re a spineless squid, but because you’re not trustworthy.

Physicians: Seek Help With Eyes Open … And Be Prepared to Walk Out.

And physicians: if you do see a psychiatrist or psychotherapist under this new ‘safe harbor’ law, at the outset ask your treater what their understanding of the law is. Ask them under what conditions are they permitted and/or required to release any information about your evaluation and treatment. Ask for it in writing; they should have such a policy. And if they tell you they believe that, yes, they are subject to mandatory reporting of physician “impairment,” I would suggest you politely end the meeting immediately. If doesn’t matter if you believe you have an impairment or not. If they feel you do, even a “potential impairment,” you risk being reported. Pure and simple. It’s way too risky. That Delaware’s various mental health clinician associations haven’t taken this up as a fundamental assault on your profession and vigorously opposed this and related “mandatory physician impairment reporting laws shows how asleep at the wheel they are.

Should Confidentiality-Violated Physicians Write These Mental Health Therapists’ – And Their Own – National Associations?

If you enjoy screaming into the abyss, sure.

Though, if you realistically believe that you might rouse an impassioned group and get something going – by all means. But don’t hold your breath.

In years past, I would’ve readily suggested your writing to these mental health clinicians’ own boards and their national associations as well as your own professional societies. But as I’ve seen with AMA and APA, and my own specialty society, these spineless, conflict-averse, group-think organizations are a key part of the problem. AMA and APA are “go along to get along” sorts and are unfortunately contaminated by FSMB and FSPHP.¹² And they are woefully ignorant of the crafty language of impairment that, if aware, would empower them to take a stand.

In fact, both these organizations’ impairment policies are riddled with ADA and other violations of which they’re knowingly, willfully ignorant.

That medical societies and professional associations haven’t devoted urgent task forces to address these concerns demonstrates how out of touch they are with the physician population they supposedly represent and the dire jeopardies they face.

Complain to US DOJ and US DHHS?

However, it might be worthwhile to write a complaint to the USDOJ and USDHHS under likely violation of HIPAA, 42 CFR Part 2 (especially if any substance abuse material is discussed or even inquired about) and violation of your privacy and civil liberties. It may result in an investigation. But even if not, it’s a way to succinctly document your allegation of violation and it further helps you to refine your understanding of what these laws do and don’t cover. (It also helps you better understand what issues and factors move a department to open an investigation; the truth is they really do have very limited resources to expend over a wide territory of wrongdoing.)

The Medical Board’s Apparent Forgetfulness of Its Limited Scope

The state and its agent the medical board and its contractor the PHP have no right to know your personal affairs. That’s well established. A medical board only has authority over a limited aspect of your professional life, and that is if there is demonstrable concern about your performance of the duties of your profession. Other than that, it’s overreach and intrusion.

But there’s been such a fear in the physician community of giving them pushback as they could harm your license. Truth is, it’s a realistic concern. Acting like a criminal prosecutor, they can make life very difficult for the detainee if they don’t go along. They’ve got the goods on you (so they say) and your cooperation or lack thereof determines whether they reduce or ramp up the charges. Whatever the ethics of that, let’s reorient. You’re not a criminal. And they’re not criminal prosecutors. You’re just a doc seeking mental health help. And you want to know your rights.

Pause for a moment to ponder this menacing behavior that has docs so fearful. Any entity that taunts you and threatens your livelihood if you dare uphold your rights is not rightfully a governmental entity. It’s a thug enterprise that ought to be sent to prison.

Safe Harbor Confidentiality Betrayal

If the Safe Harbor therapist you’ve chosen does betray your confidence and it is not for one of the very few exceptions to breakage of confidentiality (that ought to be explained in writing at the outset of treatment), cease your relationship immediately, remove any HIPAA release consents, and consider an emergency restraining order prohibiting any further communication by the therapist. You also ought also to consider malpractice litigation.¹³

Do physicians have a right to get privacy-protected mental health care? Absolutely.

Do Safe Harbor laws provide for that? No, not as written.

And in fact, they may jeopardize both the receipt of mental health care and the licensure and livelihood of the physician. I suspect it should go without saying that that seldom promotes mental health.

A Truly Safe Harbor

The only safe harbor is one where a physician’s mental health evaluation and treatment privacy rights – from selection of evaluator and treater onwards – are strictly upheld; where boards and PHPs and credentialing authorities like hospitals are compelled under threat of individual and agency criminal penalty to abide by federal and state law; and where boards and PHPs and any other governmental entities are barred with strictest protection from any entrance into that safe harbor.

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What do you think? Safe Harbor laws safe enough for ya?

I would love your comments, even - and especially - if you vehemently disagree with me. And yes, I’m open to being challenged on any of these points. And if I’ve written something that is incorrect, I will correct it and make public note of my having been in error.

A Public Invitation To Any Board or PHP Leader, Any FSMB or FSPHP Leader, and Any State Governor and Legislator To Engage in Dialog About These Matters – Publicly.

I welcome the opportunity to discuss these concerns. We can do this as a podcast or a webinar if you’d like. And to assure you that I’m really interested in dialog and not shaming anyone, I’m happy to enter into a private dialog with you.

1. Pardon my cynicism at the outset but I think it’s helpful to reflect on why the state has this concern. Is it because the state is authentically concerned about my mental health as a genuine expression of desire for my well-being and career happiness? Or is it perhaps less altruistic and more utilitarian as in “if YOU get sick, who’s gonna take care of ME? And we better keep YOU adequately sane so you can not only take care of ME but also keep billing for services so you can keep your hospital afloat so it can provide services to our population and also so that it and its hundreds of employees can all continue to pay THEIR taxes which we rely on to keep US afloat.”

2. “Well, except when you open your mouth about fraudulent billing; safety concerns; lack of PPE; disaster unpreparedness; work hour violations for residents; quality of care concerns; unwarranted surgical procedures under faux study designation amounting to human experimentation for profit; hostile work cultures; disability, gender, racial and ethnic harassment; the sexualized “As the Hottie Healthcare World Turns” soap opera shenanigans … and, well, anything that could possibly cast a bad light on our hallowed institutions’ reputation and adversely affect their revenue and our tax base ….”

3. Their uncontestable power is so broad reaching that apparently, they can order you to undergo a brain biopsy if they so chose to rule out herpes simplex encephalitis as a cause of your troubling disability.

4. Though there is a very tiny handful who really are trying, at great cost to themselves. Truth be told, nearly every one of these alleged physician impairment cases enters into the arena of complex litigation and crosses multiple content domains of law. Unfortunately, few physicians can afford the costs of a multi-person legal team bringing their combined expertise to bear. And it’s this very fact that boards and PHPs are fully aware of and which they use to deprive physicians of their rights.

5. I can almost hear them add “That the construction of your role and responsibilities within the healthcare system has become unbearably stressful, fundamentally unworkable, and overwhelming to > 50% of physicians and is driving some of you to the brink is not our problem. You should’ve addressed that elsewhere. If you can’t take the heat, you should’ve never gone into the kitchen. But please, do take care of yourself and get well soon.”

6. It is quite amazing that in a sampling of boards and their relationship to the state executive branch, it appears that these boards operate with utterly no state oversight! How is that possible? If you have no oversight, are you really a state agency? Are you really immune from suit? Can the state really delegate police powers to such an entity?

7. Tell me honestly, is there a person alive who is not "potentially impaired?” That’s 100% of the physician population. Speaking of potentiality, you of course can grasp the potential for abuse. Especially if there’s no governmental oversight, complete protection of the diagnosing entity by layers of immunity, and nary a whiff of due process.

8. From Wikipedia: “The article "Some Kind of Hearing" written by Judge Henry Friendly created a list of basic due process rights "that remains highly influential, as to both content and relative priority".[26] These rights, which apply equally to civil due process and criminal due process, are:[26]

1. An unbiased tribunal.

2. Notice of the proposed action and the grounds asserted for it.

3. Opportunity to present reasons why the proposed action should not be taken.

4. The right to present evidence, including the right to call witnesses.

5. The right to know opposing evidence.

6. The right to cross-examine adverse witnesses.

7. A decision based exclusively on the evidence presented.

8. Opportunity to be represented by counsel.

9. Requirement that the tribunal prepare a record of the evidence presented.

10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

9. Here’s the argument put forward to US DHHS OCR by an attorney for one PHP (record obtained under FOIA). Even more incredibly, OCR bought it, despite having the full psychiatric evaluation of the complainant in hand.

10. Maybe the only way pols and lawyers will take action is when Frankenstein gains the power to evaluate their potential impairment on anonymous complaints and send them to Kansas for a 4-day eval. “Oh, that wouldn’t be good.” I guess that’s when they call in the military to shoot it down. And that’s when they realize that it can’t be shot down, because it’s been made invincible with layer and layers of immunity paint.

11. I suspect that this may be a bit rude to ask, especially coming from an officially labeled and publicly paraded defective physician, but has anyone yet considered the possibility that these boards and PHPS are violating the professionalism of administrative agencies that require compliance with law? I know, I know, I could get punished for asking that, and it’s such a difficult hypothesis to even entertain … but then again, I hope you can excuse me. It must be my mental illness acting up again.

12. “Brain-polluted” might be more apt. “Drank the PHP cool-aid.” Seriously. They’re all happily buying the “round up the potentially impaired docs and get them the help they need in our top-notch, gold-standard, specially tailored ‘impaired physician rehabilitation system’ before they hurt someone” script without for one moment pausing to critically examine what’s ‘potentially impaired’ really mean and whether such a righteous crusade of proactive rescue and public protection might perchance violate such “potentially impaired” person’s civil rights and actually jeopardize patient care by wrongful disruption? Being so insulated, they’re not even able to consider the possibility that their own PHP and carefully selected preferred program assessment mechanisms might be grossly corrupt, reckless, insider-profiting, and harming thousands of physicians annually. In the numerous self-serving pieces this mutually affirming collective puts out, you’ll be very hard-pressed to find any reference to due process or civil rights. Only recently has there been token reference to ADA. There’s even language in some of these documents (perhaps one even coming from the AMA if memory serves me correctly) recommending that boards and PHPs “strive to align with the principles of the ADA” or some such high-sounding suggestion. What? There’s no need to ‘strive to align.’ It’s the law and it’s not your option whether to ‘align.’ That you’ve persisted in ‘not aligning’ and getting away with it is not to be mistaken for special federal allowance. It’s just that no one’s been educated enough or had the sustained financial wherewithal or the ridiculously insane chutzpah to challenge your arrogant law-violative policy.

13. Named or immediate physical threat to others, and child or elder abuse are the main three; confidentiality may be broached in circumstances of suicidality.