IN Board of Nursing and ISNAP Studying 'The Big Book;' Really Struggling with Step 1

Wait until they get to "searching moral inventory," "identifying who we've harmed," and "making amends." Can they "walk the talk?"

Digesting DOJ’s Letter of Finding to the Indiana Board of Nursing (IN BON)

Talk about a lot to digest!!!

As I mentioned in the last post, the Indiana Board of Nursing (IN BON) ADA case deserves much study. And I promised to share my take-aways.

But, good lord, my notes on the takeaways were longer than the DOJ Letter of Finding and my original post combined!

Re-reading the spine-straightening DOJ letter and jotting down my observations, so many dimensions of this stand out. And each time I reviewed my notes, a new understanding would emerge.

Seeking a deeper understanding of DOJ's stance, I dug into the MAT-OUD cases which preceded not only the IN BON case but even DOJ’s involvement in the MAT-OUD issue. I was curious about how the ADA came to be invoked and why DOJ got involved at all.

This post consolidates that research and those gathered reflections and extrapolates what DOJ’s really saying. From that, I speculate where DOJ’s efforts could feasibly be headed were they to apply the same reasoning to state medical licensing boards and their selectively contracted “gold standard” professional assistance type programs. 

There’s an alphabet soup of acronyms - here’s the translation table I put together. But for the most part, I’ve tried to write them out in full at least once here when they first appear.

Brief Recap of IN BON’s DOJ Letter of Finding

DOJ’s (US Department of Justice) investigation found that the IN BON and its mandatory attendance professional assistance nurse rehabilitation program, the wittily-named ISNAP - apparently a dreadful “gold standard” PHP clone - discriminated against applicant nurses who were on MAT (medication-assisted treatment) for OUD (opioid use disorder).¹ In order to maintain, or have reinstated, an active nursing license, which is necessary for any employment as a licensed nurse, participation in ISNAP is a requirement for all nurses recovering from drug or alcohol addiction. But IN BON and ISNAP prohibited nurses who were on MAT for their OUD from entrance into the program. 

OUD Does Not Mean That a Nurse Chose the Life of a Street Addict.

Having a diagnosis of OUD does not mean that a nurse chose the life of a heroin addict. Routinely prescribed narcotic meds for legitimate treatment of pain conditions can result in biochemical dependence on that narcotic, meaning it can be exceedingly difficult to stop the medication. You’re hooked on it, but not because you’re seeking an endless numb-out. It’s because your body can’t stop its need and persists in demanding the drug. That’s what the crazed cravings are about. 

OUD + MAT = DOA Program Application Status => Career Morgue

Note here, this is a state healthcare professional licensing board in cooperation with its exclusively contracted professional assistance program executing a blanket policy that resulted in obstructing participation in a rehabilitation program exclusively on the basis of having this diagnosis and being maintained on its established protocol standard of care treatment. And yet participation was necessary for removing restrictions on one’s license to practice. In other words, OUD + MAT = DOA program application status.

Likely, if you couldn’t get your license in that state on the basis of being refused entry into the program because of your MAT for OUD, your “non-participation” in the program would be reported as non-compliance with the IN BON order (of course not referencing its wrongful basis of exclusion) and thus it’d be highly unlikely that you’d get favorable consideration for your license application anywhere. In other words, once diagnosed with this particular disability and you’re on MAT, you’re labeled a pariah and you are not able to resume the profession that you trained for, no matter the sustained success of your rehabilitation treatment.

Refusing Entry To a Program of Someone Who Has a Covered Disability Is PROHIBITED Under the ADA

But carefully note – here was IN BON’s genius workaround, or so they thought: If you really “wanted in” to the program, IN BON and ISNAP required nurses’ immediate discontinuation of their existing medically necessary, appropriately prescribed treatment regimen to participate.²

Declining to cease your MAT was framed as your voluntary choice to decline the ISNAP program and thus your means to obtain your active license.

However, the courts previously held that prohibiting the treatment for a covered condition was equivalent to discriminating against that illness itself. The medically prescribed treatment is essentially attached to the covered disability for ADA purposes. An employer, government entity or place of public accommodation subject to ADA doesn't get to choose which treatment regimen goes with a disability.

Withholding Necessary Medical Treatment May Violate the Eighth Amendment

And in earlier MAT cases successfully argued by the ACLU, the courts not only upheld the argument that preventing someone from continuing their MAT when being sent to prison was a form of discrimination impermissible under the ADA. The court also agreed with the reasoning that withholding such necessary medical treatment of a covered disability (in these cases, people who were already on MAT but who were being sent to prison and the prison stated it would not provide MAT) could be seen as an Eighth Amendment violation which prohibits cruel and unusual punishment. 

These are the two critically important wings of the successfully argued MAT–0UD decisions

"But you don't have to stop your MAT… if you don't mind giving up your career.”

DOJ didn’t fall for the “it’s your choice” ruse. Merely labeling a mandatory program "voluntary" contingent on an untenable forced choice does not change its nature. Forcing someone to choose between risking their health by ceasing their prescribed medication regimen or sacrificing their career is not a free choice. The courts had already established that.

Additionally, DOJ said IN BON’s actions were not just a violation of the ADA. They were indicative of an unsafe program, given the recognized dangers of forced discontinuation of MAT.³ The irony here is not to be overlooked. Medical and nursing boards claim that their primary mission is to protect public safety.

DOJ’s gravely serious intervention apparent from its weighty correspondence with IN BON is most notable. DOJ didn’t just come in and chummily acknowledge that they know IN BON is just … trying to protect the public … and that they’re here as buddies to encourage them to perhaps consider making an exception to their otherwise fine nurse rehabilitation re-entry program….

They didn’t take the “wink, wink, we’re both government agencies and we know how difficult these policies can be” approach, giving them a token slap on the wrist civil penalty. “Tsk, tsk, it’s so unfortunate that you had to deprive another nurse of licensure because of your program’s understandably necessary spartan requirements.” Or “tsk, tsk, yes, we know you may have even driven other recovering nurses to destitution, public ridicule, and even suicide. That's just part of the difficult task of a licensing board, isn’t it? Oh well, here’s a courtesy warning; try not to do that again…”

DOJ Excoriated IN BON

No. DOJ was crystal clear and definitive in its letter of finding, more so than in any of the preceding MAT cases I reviewed. When you read the Letter of Finding, I think you’ll likely agree – DOJ didn’t just discipline IN BON and ISNAP. They excoriated them. 

As I was thinking about how best to present the interwoven matrix of issues DOJ was citing, instead of boring you with a bullet point listicle, I thought it’d be more contextually informative if I played like I was inside DOJ’s head telling IN BON what I found.

So, if I were to re-create what DOJ's unfiltered “internal dialogue” ⁴ might've been, it would go something like this:⁵

[Beep Beep … WARNING: Opening Dr. Manion’s telepathic mental link-up to DOJ’s brain]

“ Dear IN BON

“Your nurse rehabilitation program came to our attention because of one courageous nurse who applied for entrance into your program but was rejected specifically because of her diagnosis of OUD and being on MAT. She felt your rejection of her application for participation was unfair and met criteria as being discriminatory under the ADA. She was correct in noting that her OUD is a covered disability under ADA.

“She felt that having been successful on a medically prescribed MAT regimen considered by her physician to be medically necessary and fully consistent with the standard of care, she should not have her career chances completely thwarted simply because she had a diagnosis of OUD for which she was maintained on a MAT regimen.

“She decided to risk further humiliation for her diagnosis of OUD and potential exposure of her arduous course of recovery in bringing her complaint forward. She was eager to complete the program so that she could pursue her career.

“We learned through investigating that nurse’s complaint of your program’s stance against MAT–OUD apparently based on myriad rationales that you’ve convinced yourself serve as legitimate bases for an exemption from your requisite compliance with ADA’s policy on MAT–OUD. 

“We recognize that in most cases where a licensee alleges that their rights have been violated and they have been harmed, the licensee must construct a costly legal challenge and go to trial. And most of the time, if the complaint even gets to the court beyond the grip of the administrative agency and its proceedings, the courts defer to the judgment of the agency. They presume the soundness and legitimacy of its and its contractors’ policies and quasi-judicial processes, even though knowing they more resemble kangaroo courts. If the state’s compliance overseer had done its work, then their finding of agency noncompliance might have provided an opportunity for that licensee to successfully argue their ADA case. In fact, it might have entirely prevented the need for a discrimination case on this basis to be brought forward.

“But in so many cases, even well-documented complaints alleging such a federal violation can never prevail because of the inherent deference given to the agency’s presumptively law-abiding, ethical, and medically-grounded reasoning. After all, that’s why the real civil justice system gave an administrative agency quasi-judicial powers. It presumed they would treat this power over another’s rights with the integrity and diligence it demands. We also know that for many, the obstacles to even mounting a rightful legal challenge in defense of one’s rights are simply too great. 

We have decided to represent the interests of both the government and the nurse you harmed

“We understand and appreciate the challenge of this context. And as we’ve seen this prejudicial approach to MAT–OUD expressed quite widely, we’ve witnessed irreparably adverse career and life outcomes for those who should have had their ADA rights to substance-abuse recovery and rehabilitation protected. Because of this, we’ve determined that it’s best for us to act not only on the federal government’s interest in ensuring your adherence to federal law but also on behalf of this nurse, and others like her, who’ve been harmed by your unlawful policy.

Your rationales for discriminating against MAT are flawed and moot.

“You’ve provided numerous rationales why you do not accept into your ISNAP program nurses who are in recovery from OUD via the benefit of MAT. Amongst them:

‘MAT is a weak way out of addiction, and besides it’s just replacing one addictive drug with another.’

‘MAT goes against our “higher power” motif which has been so successful for so many.’

‘The leading medical professionals we follow, the ones who founded and even run our carefully-selected preferred programs, don’t endorse MAT; they too believe in the TSM (twelve-step method) as the only effective treatment approach.’

‘Surely you’ve seen the article in the Judges Journal where Drs. Dupont and Merlo, longtime researchers and thought leaders in healthcare professionals’ addiction problems, tout the superiority of our approach. They've certainly been able to convince judges of the purity of our approach. After all, it's considered the gold standard.’⁶

‘Besides, MAT makes people zombies and that jeopardizes patient care, and we certainly don't want to allow that!’ 

‘And further, MAT would interfere with our drug testing in our monitoring program.’ 

“While this novel judicial influence gambit surprised us, we've heard all of these before. And you know what? None of these matter. Those are not the authorities we follow. Those are not the rehabilitation philosophies we endorse. In fact, those rationales and the policies that are based on them run counter to the very core of the ADA. And as we've noted, they are explicitly DANGEROUS.

“What you don't seem to understand is that while you and your referenced scholars and your national associations might all agree with your policy on this, and you might even covertly influence judges to subscribe to your approach, and while your Governor and whatever oversight mechanism you have in place (which appears to be little or none) may have given you a thumbs up, none of that matters. They are as equally wrong in their approach as you are. Simply banding together and declaring something to be your policy doesn't make it right. Asserting that only you know what’s best, that you’re special and exempt from federal law, perhaps even believing that your state identity makes you immune from federal regulation, doesn’t make it so. (Pssst, that’s what professionals refer to as “magical thinking” and, just between you and us, that’s a bit worrisome. So, if you really do believe that, uh … we don’t know how to put this … uh, perhaps this might be a good time to, you know … ‘see somebody.’) ⁷,⁸

“The US Supreme Court conveyed the same lesson to the North Carolina Dental Board regarding its conviction that its imperial, state-protected antitrust behavior was entirely their call, and further, untouchable by federal law. What they learned is that no matter how many other boards and national associations file impassioned amicus briefs in support of your infallibility, governing law is not decided by group consensus. (In case you don’t have time to read that decision [link], the Court ate their lunch, and dental board members will be bringing bologna sandwiches to work for quite a while to pay the damages and legal fees.) 

“What matters is that, as we’ve argued in case after case, and as the courts have repeatedly upheld, barring people with a disability you happen to disfavor who are receiving professionally prescribed, medically appropriate and necessary treatment for their condition – simply on the basis of your stereotyped conclusions about that disability and its medication needs, or because they don't meet your idiosyncratic criteria that are inconsistent with nationally accepted treatment protocols – is impermissible discrimination under the ADA. Apart from considerations of having the necessary qualifications for the job and determining one's capacity to do the work with or without accommodations, you don't get to choose which disabilities and treatments you will allow and which you won’t. Nor do you get to invent exclusionary criteria that exclusively favor one treatment modality over all others, at that which do not comport with national protocols.

“Your selective discrimination based on your self-assigned authority is unlawful and has resulted in immense harm. 

Your discriminatory actions are not only unlawful and harmful in the civil rights sense. They are medically dangerous.

“But not only is your action unlawful and harmful in the civil rights sense, it is medically dangerous. Making the cessation of a prescribed, medically necessary and medically monitored treatment regimen that is working as optimally as could be hoped a condition of entry into a required rehabilitation program is dangerous. In fact, one could argue that you are an agency practicing medicine without a license, audaciously disregarding the patient’s legitimate medical authority, and doing so at that in a manner that would be considered malpractice were you an individual practitioner. (We won’t raise the Eighth Amendment issue here, but … let’s put it this way, it’s not outta sight. And if we were to consider your board as though it were equivalent to a corporate board, we might explore your governance principles and your requisite compliance with federal law.)

“Even further, your policy continues to irreparably harm licensees by depriving them of any reentry into their hard-earned careers and subjects them to further discrimination, humiliation, and economic privation. And these too, in addition to causing them inordinate pain and suffering, immensely jeopardize the durability of these nurses’ recovery and thus their medical wellbeing. You are literally endangering their health and more generally the safety of the public by your discriminatory behavior and coercion of MAT cessation based on your unilateral declaration that you can ignore national medical protocols and replace them with your own. 

We are further expanding our representation to all nurses you have harmed by your actions.

“And so it’s for these reasons that we not only find your action against this nurse’s ADA rights unlawful but also find that your actions against similarly situated nurses unlawful and harmful. And as this is driven by your defective policy, we find that your policy itself promotes the continued ADA-unlawful behavior and, until corrected, will continue to irreparably harm not only Indiana nurses applying for reinstatement but all Indiana nurses who may yet face the challenge of OUD recovery, as well as licensed nurses out-of-state successfully being treated on MAT who may simply wish to transfer their licenses from their current state to Indiana. 

And so, listen up! Here's the skinny.

“And so it is with these investigatory findings that we insist you immediately change your policy; notify your ISNAP contractors and those who interface with its program of our findings and inform them that your policy and practice have been in grievous violation of the ADA; immediately allow this nurse who is on MAT entry into your program; notify all other similarly diagnosed nurses of your erroneous exclusion of them from your program; and pay not only civil penalties but compensatory damages to the current complainant and to others you’ve harmed by your ADA-violative policy. You likely understand that those damages will include not only lost income but compensation for the pain and suffering for the harms you have caused as well, of course, for the multi-party legal fees which will have accrued.

Welcome to OUR Monitoring Program

“As we see this as such an egregiously harmful violation and as it is also clear that you have no effective governmental oversight, we will monitor your compliance with our ADA-consistent recommendations for the next four years.

The Bill For Your Violations and Harms Could Be Steep

“And, keep in mind that the civil and potentially criminal penalties and compensatory damages we award for the complainant and others you’ve harmed will need to be paid in full on-demand – one certified check, thank you – to us, the US Department of Justice. We recognize that most state agencies generally don't have tens of millions of dollars available for prompt disbursement to pay penalties and damages. (And no, we don’t have any scholarship programs that cover that.) Presuming that you are a legitimate state agency operating under executive branch oversight, then this financial liability may fall to your Governor (who won’t be too happy) and your state’s treasury. If it is determined that you have acted in a way that constitutes a criminal violation, it may be that neither the state nor any errors and omissions insurance policy you might have will cover you or your contractor. Each of you independently bears full liability for compliance with the ADA. Its compliance responsibilities are nondelegable. But that will all become clearer by the time of trial or when we arrive at settlement discussions pre-trial.

Don't even think about taking it out on the nurse or nurses who brought this complaint to us.

“And, just a reminder, this is not our first time around the block. We trust you won't stoop so low as to covertly retaliate against this nurse or others who have the same diagnosis and medication-assisted treatment needs. We're well familiar with the bag of tricks scolded parties pull: whisper campaigns; shaming and social isolation; anonymous complaints of bad care; falsified reports of missing narcotics; even convincing the prescribing doctor to discontinue their MAT order; ad nauseam. If there’s a real problem with anyone in your rehabilitation program, address it fair and square. But it's critical that you understand that retaliation of any sort is prohibited under the ADA. If we get wind of any of these, be assured we will visit promptly. And should that be necessary, we're likely to ask you to accompany us out of the building so that we can all meet at headquarters. (Yes, certainly you will be able to have your attorneys accompany you.)

“We are presuming that you would like to bring this embarrassing and costly matter to prompt closure. If we don't hear from you within seven days, we will conclude that you have decided that it's preferable for us to sue you. Should that be the case, we may impose an injunction against any further involvement in Indiana nurse licensure.

[Beep Beep … ALERT: Closing Dr. Manion’s telepathic DOJ mental link-up]

Again let me stress that this is my fictional reconstruction of what I would imagine the DOJ's internal dialogue to be. Admittedly it could be a tad too gleefully vindictive.

But for me what fuels that sentiment is the recognition that this is the first clear indication that a federal law enforcement agency is holding a state healthcare profession licensing agency to account for its systematic violation of federal law AND for the grievous harms that that has caused.

Over the past decade, I’ve had well in excess of five hundred in-depth consultations with physicians, dentists, med students, and nurses, and on numerous occasions their spouses, who’ve been ensnared in what struck me as unjust and likely illegal board, PHP and sham peer review entanglements. And litigation to protect their rights has nearly invariably been futile. Not necessarily because of the deficiency of their case or counsel but because the entire board / PHP / peer review system is structured in such a way as to effectively ensure licensees’ not receiving justice. It’s a system that is virtually designed to create a recurrent substantive due process violation, a carefully crafted quasi-judicial system that uses carefully selected ‘go-along-to-get-along’ professional assistance programs and costly kangaroo court administrative proceedings to drain all resources from the licensee and leave them defeated and powerless. And, let me stress, irreparably psychologically harmed, some to the point of suicide.    

DOJ’s Letter of Finding Is Not A Settlement Agreement Nor Is It The Final Judicial Decision Of A Court.

DOJ’s Letter of Finding is not a settlement agreement nor is it the final judicial decision of a court. It is a letter of finding based upon the investigation of a complaint. Should IN BON not agree with DOJ’s findings, it of course can contest DOJ's recommended course of corrective action, itself remarkably similar to a proposed consent order, and go to trial.

When you review the DOJ settlement letters in the cases of the Pennsylvania Unified Court System and the Louisiana Bar, you begin to get a feel for what giving pushback to the DOJ’s investigatory findings results in. When they inform you in their letter of finding that their investigation has concluded that what you’ve done is against the law, and they lay out point-by-point the facts of the violation and the exact stipulation and case law which supports their assertion, you would quickly realize that this is not just a matter of an informal chat over coffee sharing differing opinions about program policies and little tweaks that need to be made. It’s essentially a statement of civil and potentially criminal charges. It is also a letter, exceedingly diplomatically worded, informing you of DOJ’s intent to prosecute you for the alleged violations. Realize, these are not your local town constables doing summons deliveries. They know the law they’re prosecuting these violations under and everything that relates to it. And they will eat the agency and its lawyers’ lunch. As snacks.

To me, it’s the first indication after a long dormancy (going back to the NJ Med Society v NJ Med Board [Jacobs case] in 1990), the first refreshingly hopeful breeze, that a federal law enforcement agency is going to confront the formerly untouchable medical boards’ and physician health programs’ arrogant defiance of federal law, its rogue behavior enabled by the wholesale failure of their states’ active oversight. 

DOJ to Governors: "It is your duty to ensure that your agencies comply with federal law. Absent that, the agency is rogue, and you’ll pay the bill.”

Treating IN BON and other licensing boards as the state agencies that they purport to be, DOJ is really saying to the governors of those states "it is your duty to ensure that your agencies comply with federal law. If you do not have the wherewithal to oversee these agencies and ensure their compliance, then not only will you incur significant civil and potentially criminal penalties and sizable aggregate compensatory damages, your refusal to ensure such oversight may result in the curtailment of diverse federal funds upon which you rely. It will become clear to you that it is in your best interest to ensure active oversight of these agencies and their fullest compliance with governing federal law.” (Again, my extrapolation, not a DOJ quote.)

This Is About Way More Than MAT or Even ADA as a Whole.

More broadly considered, this is about way more than MAT or even ADA as a whole. When considered with the thrust of the FTC v NC Dental Supreme Court case (2015), this is so much larger.

FTC v. NC Dental - US Supreme Court Decision

It’s about administrative agencies, operating under the identity of the state, abusing their power and violating civil rights guaranteed to all citizens under the US Constitution and further specified under numerous federal laws. It is about these agencies operating under the belief that they’re untouchable and that they can dictate with complete impunity the terms of regulating their state’s professions. And due to states’ ‘hands off’ vacancy of oversight – whether simply negligent or willful so as to constitute complicity – these rogue agencies have become virtual states unto themselves. They’ve re-written the rules of due process and taken extraordinary liberties with declaring who to subject to an involuntary civil commitment and to polygraph interrogation at any of their specially selected network of “preferred programs.”

Having amassed considerable clout, they’ve come to believe that they are the sole determiners of what defines disability and what’s an “acceptable” disability and treatment.

“Terribly sorry guys, it doesn’t work that way.”

Under the heroic banner of ‘protecting the public’ and ‘ensuring professionalism,’ and newly robed in the pseudo-concerned righteousness of’ ‘attending to the needs of stressed medical professionals,’ they truly seem to believe they can pick and choose which federal laws they will and won’t abide by, simply because they say they can, there’s no state-attired adult in the room telling them they can’t, and no one has yet definitively confronted them. 

With IN BON and its ancestry of related MAT cases, DOJ is saying “terribly sorry guys, we know this must be very difficult to hear, but it doesn’t work that way.”

And … I and other readers would love, love, love to hear your comments, even if you think I’m a snappy p.i.t.a. Which I suspect would be IN BON’s sentiment. But I bet they have the same fondness for DOJ. ;)

And, btw, did you know you can get the new Substack app entirely free on your very smart phone? You can subscribe to me and a truckload of fine writers and their wisdom is just waiting for you in one click on your app. Stuck in traffic? Doctor’s waiting room? Surgeon’s lounge perhaps. Another grand rounds on burnout and the importance of having a balanced life …. Enjoyable informative reading awaits.

1. Setting the Standard for Recovery: Physicians' Health Programs. R.L. DuPont et al. Journal of Substance Abuse Treatment 36 (2009) 159–171.

2. I have little doubt that they would frame this manner of entrance into their program as voluntary, presumably believing that that would free them of liability.

3. While the ancestry of MAT-OUD cases presents the Eighth Amendment argument and the court affirmed its plausibility, DOJ did not directly reference the Eighth Amendment violation in the IN BON letter. But it did something similar. It essentially labeled the program UNSAFE.

4. You know, those cartoon-like thought bubbles we all have going on in our heads but, thanks to reasonably intact frontal lobes, keep them there.

5. Again, keep in mind, this is MY FICTIONAL EXTRAPOLATION of what I COULD IMAGINE the DOJ meta-dialog to be. But, as I found in my clinical practice, my often disinhibited verbalizations of my patient’s thought bubble were right on target. Of course, I had earned their trust and been given permission to pry behind their frontal lobe guardians.

6. Physician Health Programs - A Model for Treating Substance Use Disorders, Robert L. DuPont and Lisa J. Merlo. The Judges' Journal, Volume 57, Number 1, Winter 2018. In response in the next issue of that Journal, see the incisive LTE Physician Health Program Outcome Data Should Be Viewed with Caution by Nick Lawson and J. Wesley Boyd.

7. “And don’t worry for one moment about the stigma. We all have rough spots in our lives. In fact, there’s a new law - The Lorna Breen Act - that was enacted specifically to protect all clinicians in their getting help, ironically protecting them against ADA-violative agencies just like yours. Perhaps it might apply to you as well. (Now … we probably don’t need to warn you, but a PHP might not be your best option right now. Especially if you want to keep things, you know, private. You could end up being sent to a 4-day evaluation. Now that would be embarrassing.)

8. “And while you’re researching who to see, this might not be a bad time at all to arrange a consult with counsel who specialize in compliance and risk management.