Part 3 - Understanding The Relevance of The Americans With Disabilities Act (ADA) to Medical Boards' Activities - A Big Picture Overview

To understand how MLBs violate the ADA and how normalized this multi-part package of violations has become, a brief overview of the ADA is important.

Jun 22, 2023

The dunce cap ostracization of disability

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

At the outset, a very important disclaimer. I’m not a lawyer and this isn’t legal advice. I write this repeatedly because I am reminded frequently by one or another JD of the complexity of law and needed caution in my making generalized statements about a law that, on the surface, appear reasonable, but don’t hold up in the nitty gritty. This is particularly true in generalizing about the ADA.

We’ve been exploring how medical boards may be harming physicians’ careers and obstructing their accessing mental healthcare by violating core tenets of the ADA (Americans with Disabilities Act).

As I prepared to dive in to explain two key clusters of ADA violations – impermissible inquiry on applications and compulsory medical exams – I realized that most people don’t understand what the ADA is about, how it potentially applies to every licensed physician, even those without ANY disability (“huh? How’s that possible?!”), and how MLBs (medical licensing boards) AND their symbiotic PHPs (so-called physician health programs) AND HCEs (“health care entities” such as the hospitals that credential and may also employ physicians) may be violating ADA in ways never even conceived of by most practicing physicians. It turns out that the ADA had almost become wiped from institutional memory within medicine.

This would account for why so few docs’ counsels have ever raised ADA as a defense when a doc has been accused of impairment and then forced into a non-neutral PHP evaluation program using polygraph-wielding interrogators to get to the bottom of their alleged public-endangering malady. Which of course the docs are told they have to comply with immediately or lose their licenses – and pay for!

Some Background Into My Discovering the Relevance of This Otherwise Obscure Law to Physicians’ Rights

Quick story: Since blowing the whistle in 2009 on dangerously inept care of servicemembers returning from combat duty with PTSD and concussion-type brain injuries, and then having my career derailed by an abusive, secretive medical board utilizing a corrupt PHP conducting dishonest forensic psychiatric evaluations under a false identity, I was studying the board-PHP axis of power trying to determine who oversaw its operation (no one, it turns out) and what laws it was subject to (none, was the experiential reality). Now, of course, it turns out that there are indeed laws beyond the defective statute that empowers these two entities, but with utterly no governmental oversight and operating with untouchable immunity, they roamed around the state like menacing tyrants and implied that they could yank your license if you so much as smirked at their board president’s multi-colored clown socks or their executive director’s proclamation that he had anointed himself the CEO of that board.

If any cases did manage to penetrate the board’s wall of defenses, these were apparently hustled off to a secretive settlement bound by a strict non-disclosure agreement. I would expect that the settlements were paltry because, after enduring years of practice suspension and gazillions in legal fees, these docs were war-weary and eager for closure so as to put the traumatic Kafkaesque nightmare behind them. A couple of token bucks and a Pyrrhic victory of regaining their “privilege to practice” would be readily accepted. Consequently, you’d be lucky to find any cases that had gone to court. And as a result, the pattern of violations, the legal arguments and the court decisions could never be studied so as to learn what laws might pertain.

Pretty nifty trick, you gotta admit. Same one from the corporate retaliation playbook that the Archdiocese of Boston used to conceal its payoffs to its pedophilia victims. (See the movie “Spotlight” - explains exactly how it’s done.)

I then discovered that the US DOJ in 2014 had gone after the LA Bar and its overseer, the LA Supreme Court, for asking ADA-impermissible questions on its licensing application.1 Ahha - a federal law they’re subject to! Surely, the Bar is like a medical board! And here’s a federal agency going after a state agency, and a state Supreme Court!!!

But my situation wasn’t related to a medical board question. And besides, I’m not disabled. I blew the whistle, my US Congressman was aghast and got the Sec of the Navy and the Defense Sec involved. But, alas, things ramped up … to my detriment. Because I’d gone to the police to express concerns about my safety, the board alleged that “they were concerned about my mental health.” And thus ensued a campaign to declare me mentally ill and dangerous to patient care. No patient complaint. No colleague complaint. No history of mental illness or substance use problems; no disciplinary history; no malpractice history. Well respected and liked by patients and families. And the career destruction campaign went nuclear as my whistleblower case entered federal court.

Because I’d started a physician rights advocacy study group several years earlier and had begun building CPR - the Center for Physician Rights, a disability lawyer reached out to me and asked “why aren’t docs like you using the ADA in their defense?” I brashly told him “why ever would I do that if I’m arguing just the opposite - that I’m NOT mentally ill, that I’m NOT disabled.” To which he responded “Because you don’t understand the ADA. You don’t have to be disabled to be covered. If a hospital or board is alleging that you are, then you’re covered under the ADA, as one of the three categories of persons covered is those who are BEING REGARDED AS DISABLED."

And thus, the prior four years have led me into a deep dive into the ADA and its applicability. And what a surprising exploration! (Want to know another surprise? Those $10,000 so-called fitness-for-duty evaluations ordered by medical staff committees and by boards - the cost for these is not supposed to be imposed on the allegedly impaired physician! [Clarification on medical exam payment - see FN 2 ]

And that’s why this current initiative by three US senators and US DOJ Civil Rights Division is a BIG DEAL. But to understand how massively relevant it is, you have to get the big picture of the ADA, and get beyond your very narrow presumption of what the ADA is about. It’s not just about wheelchairs and doorways and handicapped license plates.

It can be overwhelming to try to take all of the ADA commotion in in one sitting. For many people, reading law is about as enticing as studying the fine print on an insurance policy.

One of the main reasons why I’m going into the ADA topic now is because the time is ripe for all docs to write a complaint to US DOJ if they feel that their rights have been transgressed by boards (which are Title 2 entities under ADA) in their various ADA-violative actions. The senators’ letter also implies that they’re equally concerned about ADA violations by hospitals and by residency training programs.

Those who have been affected by these pervasive violations will want to be sufficiently informed on key points so as to submit at your earliest convenience an ADA-based complaint to the US DOJ.

If you’ve been harmed in the last several years (though it doesn’t have to be limited to just these recent years, as DOJ is trying to understand the scope of harm) by a medical board or a PHP (or hospital or training program) whose conduct that, in consideration of the types of transgressions described in these articles, you feel may be in violation of the ADA, now finally is your chance to come forward to help halt this abuse and hold these predatory offenders accountable. There has never been a more optimal time to take action so that physicians don’t have to live in fear of having their careers trashed and their lives upended by an imperious medical board simply for getting mental health help, or for being alleged to be impaired and then funneled into their career-destructive, due process-denying, state compelled PHP-captured psychiatric assessment and “rehabilitative treatment” system.

The Americans With Disabilities Act (ADA) - A Mountaintop Overview

To understand the ways in which MLBs may violate the ADA, and how normalized this violation has become, a brief overview of the ADA is important.

The Americans with Disabilities Act (ADA) was enacted in 1990. It’s a civil rights law that grew out of the Rehabilitation Act which had earlier established disability protections for federal employees. The ADA was designed to prevent discrimination against people with disabilities. Its essence lies in promoting and ensuring equality and opportunity, full societal participation, independent living, and economic self-sufficiency for people with disabilities. At its heart, it is an anti-discrimination law.

The term “disability” covers just about all significant bodily and mental impairments, illnesses and injuries that affect one’s life in some significant domain (e.g. work), and are non-transitory. The coverage of ADA applies to those who not only have a record of (e.g. previous history/diagnosis of) such a disability but those who have a new onset disability.

Of particular importance is the inclusion of another category of covered persons – those who may or may not have a disability but who are “regarded as” having a disability. It is this last especially that has immense significance for physicians who, though having no diagnosed disability, are alleged to have such a disability that impairs their capacity to function as physicians. When a hospital or MLB insists or orders a physician to report to a PHP for a medical FFDE (fitness for duty exam) on an allegation of impaired performance, that physician is considered “regarded as” disabled and thus covered under the ADA.

And why is that coverage important? Because it imposes limits on the nature of the inquiry, the focus of that ordered medical FFDE exam, the confidentiality of that medical exam, and requirements regarding individualized case analysis and consideration of accommodation. In other words, no cookie-cutter approach. It also prohibits what is termed “excessive testing” and also “surcharge,” namely imposing the costs of such examination or accommodations onto the disabled person. It will also come as a surprise to many that, at least under Title 1 (covering hospitals in their capacity as employers of physicians), the extensive testings (yes, including the polygraph-assisted psychiatric interrogations done at the MLB/PHP enterprise’s “preferred centers”), are supposed to be underwritten by the ordering institution. The shifting of that cost may be considered as imposing a surcharge.

It is indeed curious how the far-reaching implications of the ADA seem to have been erased from the medical regulatory system institutional memory since the seminal medical board case (“Jacobs” - more on that later) in 1993.3

As we’ll explore, independent of whether a physician does or doesn’t have a disability (including any in that category of mental/emotional illnesses and substance use disorders), when a physician is alleged to have impaired job performance thought to be due to a disability, and ordered by an MLB in some way to submit for a mental FFDE examination by a PHP or similar entity, they are covered under the ADA.

Know a physician who’s been unfairly ensnared with the medical regulatory ‘therapeutic rehabilitation’ complex? Share this post now. DOJ wants to hear from all docs who’ve been harmed by these entities’ ADA violations.

The ADA Is Divided Into Titles

Title I of the Americans with Disabilities Act (ADA) is focused on Employment. It is designed to protect people with disabilities against discrimination in the workplace. It contains provisions for:

Employment discrimination prevention: Title I makes it illegal for employers (with 15 or more employees) to discriminate against qualified job applicants and employees based on their disability. This applies to all aspects of employment, including hiring, promotions, job assignments, training, termination, and any other employment-related activities.

Note here: I’ve bolded applicants to stress that these are qualified (meaning they’ve been suitably trained, like physicians) who are filling out application / credentialing forms. And employees meaning that these are qualified people who are already employed.

Reasonable accommodations: Employers are required to provide reasonable accommodations to an employee or job applicant with a disability unless doing so would cause significant difficulty or expense for the employer ("undue hardship"). Reasonable accommodations can include modifications or adjustments to the job application process, the work environment, or the way a job is usually performed that enable a person with a disability to have equal employment opportunities.
Confidentiality of medical information: Employers are not allowed to ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. Medical examinations of employees must be job-related and consistent with the employer’s business needs.
Retaliation and coercion: The ADA also prohibits retaliation by employers against individuals who assert their rights under the law, or who assist others in doing so. Moreover, it is unlawful to coerce, intimidate, threaten, or interfere with individuals in the exercise of ADA rights.

Title II of the Americans with Disabilities Act (ADA) pertains to "Public Services". Its essence revolves around non-discrimination in all programs, services, and activities provided or made available by public entities. This includes MLBs and in some cases the PHPs when the PHPs are funded by or act on behalf of the MLB.

The key aspects of Title II can be summarized as follows:

Nondiscrimination: Title II prohibits discrimination based on disability in all services, programs, and activities provided to the public by state and local governments, except public transportation services.
Reasonable modifications: Under Title II, public entities must make reasonable modifications in policies, practices, or procedures when necessary to avoid discrimination on the basis of disability, unless it can be demonstrated that making the modifications would fundamentally alter the nature of the service, program, or activity.
Accessibility & Integration: Title II also requires that services, programs, and activities be provided in an integrated setting which means that individuals with disabilities must be able to participate in and benefit from the services, programs, or activities of a public entity in the same way as individuals without disabilities.
Eligibility criteria: Public entities cannot apply eligibility criteria that screen out or tend to screen out individuals with disabilities from fully and equally enjoying any service, program, or activity unless such criteria can be shown to be necessary. (This was one of the lynchpins of the DOJ’s case against the LA Bar.)

Title II of the ADA, therefore, is about ensuring that public entities do not discriminate against individuals with disabilities and ensure accessibility and equal opportunity in all their services, programs, and activities.

Title III of the Americans with Disabilities Act (ADA) pertains to "Public Accommodations and Services Operated by Private Entities." This section of the law ensures that people with disabilities have access to facilities and services offered by businesses and non-profit organizations.

Here are two key aspects of Title III:

Nondiscrimination: Title III prohibits private places of public accommodation from discriminating against individuals with disabilities.
Accessibility and Modifications

In essence, Title III of the ADA works to ensure accessibility and non-discrimination in places of public accommodation and commercial facilities, promoting equal access to goods and services for people with disabilities.

As you can see, common to these three titles covering different jurisdictional domains is the concept of non-discrimination. And one of its core elements is not making prejudicial conclusions about a person’s capabilities and thus excluding them from the benefits available to all citizens. A recurring theme in ADA cases is that simply having a diagnosis (e.g. a depressive disorder) does not mean that a person can’t perform the essential functions of a job comparably to someone with that disability.

Are physician health programs (PHPs) covered under Title 2 or Title 3?

Physician Health Programs (PHPs) are often sponsored by state medical societies or medical boards to help physicians with issues related to substance abuse, mental health, or other medical conditions that might impair their ability to practice medicine safely. As such, they can be considered a type of public or private service depending on their administration and funding.

Under the Americans with Disabilities Act (ADA), the applicability of Title II or Title III to PHPs depends largely on their specific context:

Title II applies to public entities, including any state or local government and any of its departments, agencies, or other instrumentalities. If a PHP is administered or funded by a state or local government, it could be covered under Title II.
Title III applies to places of public accommodation, which are private entities that own, lease, lease to, or operate facilities like healthcare and social service locations. If a PHP is privately run, it may be considered a public accommodation and could fall under Title III.

The difference in orientation of the law amongst Title 1 (employment relationship), Title 2 (government entities), and Title 3 (places of public accommodation) is why each of the Titles has different stipulations unique to it. In fact, the titles might almost be considered as separate laws. Stipulations in one title can’t be applied to another title. However, the governing principles could be applied by the enforcement agency responsible for that title. Title 1 is enforced and offered interpretative guidance by the Equal Employment Opportunity Commission (EEOC). Titles 2 and 3 are enforced by the US DOJ Disability Rights Section of the Civil Rights Division.

For example, the concept of “impermissible inquiry” is really elaborated upon in Title 1 pertaining to hiring. Title 1 also specifies the parameters of permissible medical inquiry and examination after having been offered the job.

During the pre-employment stage, i.e., before a job offer is made, an employer may not ask questions that are likely to elicit information about a disability. This includes asking about the existence, nature, or severity of a disability, or asking about the use of prescription medications or prior sick leave. Employers also cannot ask job applicants if they have a particular disability or require them to take a medical exam before offering a job.

After a job offer is made, the employer can ask disability-related questions or require a medical examination as long as this is done for all new employees in the same job category.

Once employment begins, the ADA DOES allow employers to ask disability-related questions or require medical examinations, but only if they are job-related and consistent with business necessity.

However, a Title 2 governmental entity providing public services isn’t an employer (except of its own people). An MLB is a Title 2 entity, and so the stipulations pertaining to employers in Title 1 don’t apply.

And when the ADA was written, it wasn’t envisioned that governmental entities would be conducting medical exams. Thus, there aren’t specific stipulations for the conduct of medical exams in the same manner as Title 1, nor for disability-related inquiries. Rather, the guidance is more generally focused on prohibition of discrimination that unfairly blocks access to one’s licensure in their profession solely on the basis of the existence of a selected disability or class of disabilities.

When DOJ filed its amicus brief in the Jacobs case, its concerns related to inquiries about applicants’ having a mental illness disability. After screening questions compelled such disclosure, they were then subjected to more invasive scrutiny and even psychiatric examination, and the confidentiality of these activities was not protected. The DOJ approached this case on the discriminatory handling of “eligibility for services,” a Title II concept, based on ensuring equal access to services (e.g. licensing) or public accommodations rather than on the employment framework articulated under Title I. DOJ might argue that certain disability-related inquiries are discriminatory because they could deny people with disabilities equal access to licensure and thus to their profession on the prejudicial stereotypes about their having a mental health condition and their capability as lawyers. This action was interpreted as denying access to a service based on one’s disclosure of having a disability which is prohibited under Title II.

The Title 1 rules make certain types of inquiry impermissible because they are designed to prevent discrimination in hiring. If an employer could ask about disabilities before making a job offer, for example, they might use that information to preemptively discriminate against applicants with disabilities. This is meant to make entrance a level playing field and promote equal opportunity.

Interestingly, after a job offer has been made, further screening can be done, but that same examination must be administered to all who have been accepted for that type of position. Even so, that class-wide testing would still be required to demonstrate that the medical examination was truly of business necessity and was tied to measuring capability of performance of the specific job.

Whether done or not, once hired, broadly speaking, the only times a medical exam can be ordered by the employer are when it pertains to concerns about whether some impairment is manifesting, i.e. job performance is being affected by a possible disability; whether an employee is requesting an accommodation for their disability; or the employee is posing a direct threat to oneself or others by reason a presumed disability. And there is a process to follow in ordering such.

However, in the context of public services (Title II) and public accommodations (Title III), inquiries about a person's disability would typically be impermissible if they serve no legitimate purpose and are used as a basis for denying access to services or facilities.

While similar, the predominant focus here in Title 2 is on ensuring that services, programs, and activities are accessible and do not unnecessarily exclude or segregate individuals with disabilities.

In the LA Bar case, the issue of impermissible questions was predominantly concerned with denying, on the basis of one category of covered disability (broadly mental health matters), access to services and opportunities, namely unconditional licensure.

Title II prohibits discrimination on the basis of disability by public entities, and it states that public entities may not impose or apply eligibility criteria that tend to screen out individuals with disabilities, unless such criteria are necessary for the provision of the service or program in question.

One ADA expert commentary noted that in its LA Bar case findings, the DOJ did not rely on Title I, which relates to employment and would not apply directly to the bar association's licensure process. Instead, the DOJ found that the bar association's questions about mental health, which asked about diagnoses and treatment, were too broad and could potentially deter individuals with mental health disabilities from seeking licensure, thereby violating Title II. The DOJ's settlement with the Bar included changes to the Bar's questions to focus more narrowly on behavior that would impact a lawyer's ability to practice law in a competent, ethical, and professional manner, rather than on the mere existence of a mental health diagnosis or treatment history.

Of note, the DOJ settlement agreement does not specifically mention penalties for demanding to examine medical records or insisting on medical or psychiatric exams which the Bar had apparently done. While the thrust of the LA Bar case settlement was on addressing the discriminatory eligibility stance, ensuring future compliance and improving the fairness of the admissions process, the DOJ did compel the establishment of a fund to reimburse those who incurred medical expenses related to the unwarranted medical records review and examination.

As part of the settlement agreement, the Louisiana Supreme Court (which runs the Bar admissions process) agreed to establish a $200,000 compensation fund to compensate individuals who were subjected to additional investigations and/or conditions based on their mental health status. It did not (apparently) impose a penalty for the harmed reputations and diminished job prospects of attorneys who reported such consequences in their interviews with DOJ.

The overall goal of the LA Bar case settlement on its ADA violations was to ensure that each individual’s eligibility is evaluated based on their abilities and qualifications, rather than stereotypes or assumptions about disabilities. DOJ found that the Louisiana Bar's admissions process was not consistent with these principles, and the detailed settlement agreement (including DOJ’s monitoring the LA Bar’s handling of its applications for 5 years!) was intended to correct that.

No matter how many times I go over the difference between the Title 1 & Title 2 impermissible inquiry application process being discriminatory, from my perspective (a non-lawyer), the difference between the prohibitions against discrimination via impermissible inquiry serving as the basis of disability being used to thwart a potential employee from acquiring a specific job from an employer, and discrimination via impermissible inquiry serving as the basis of disability being used to thwart entrance into a profession, is splitting hairs. I could imagine that if Title 1 and Title 2 were administered by the same agency, the prohibitions against thwarted entry into job or profession would be identical. One simply blocks a job within a profession; the other blocks entrance into the entire profession.

Using that same reasoning and given the dearth of specific guidance on medical exams and excessive testing in Title 2 and more explicit guidance in Title 1 by EEOC’s framework, it would appear reasonable that in the capacity of occupational licensing, criteria parallel to those articulated in Title 1 and its guidances would either be drafted or virtually incorporated by DOJ as applicable to its domain of enforcement. Because, if I understand the basis for questions around the applicability of similar anti-discriminatory principles in both enforcement domains, it’s simply that one has more explicit guidance and the other – the same antidiscriminatory law, and same employment barrier, but different ADA Title – has little to none. And so everything has to be argued at $100,000 a pop as to whether it pertains. Even at just a thousand cases a year - 200 per state medical board - that’s $100 million in legal fees for fancy legal jousting (paid for from the docs’ wallets), at that for an iffy outcome, to say nothing of the harmed careers, psychological anguish, and lost income.

However, as we'll see in Parts 4 and 5, both the impermissible questions and the increasingly liberal use of weaponized “impairment-due-to-disability” allegations ultimately lead to the MLB’s scrutiny and ADA-subject medical exam provisions. They may also lead to reporting to the federal recorder of all adverse licensure actions, the NPDB, regardless of valid disciplinary merit or denial of contest.

Hopefully, this has not overwhelmed you but rather encouraged you to go deeper into understanding your rights under the ADA, and to consider filing as a highest priority a complaint on these bases to US DOJ. Your complaint will be read by attorneys at DOJ and will compel protection of physicians’ rights under penalty of federal law.

Physician Interrupted

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