Part 4 – To Understand the Diverse Ways MLBs, PHPs, and Hospitals May Be Harming Physicians by Violating ADA, It's Vital To Understand ADA's Essence.

DOJ laid out its initial case against MLBs 30 yeas ago. They apparently chose not only to ignore DOJ's guidance, they've exponentially expanded their abuse portfolio.

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

(This is Part 4 of a series of articles exploring the Americans with Disabilities Act (ADA) in light of the intense scrutiny of state medical licensing boards’ (“MLBs”) potential array of Title 2 violations. 3 US Senators and US DOJ are actively investigating a growing number of complaints about abusive practices that have not only worsened physicians’ mental health but jeopardized their very careers for getting help. [Not to mention fueling a regulatorily captured, highly lucrative “impaired physician rehabilitation” racket.] It would not surprise me if both the Senators and DOJ were incredulous at the breadth and severity of the violations.)

So, what are the ways a Medical Licensing Board (and its colleagues in the MRTC) might violate the ADA?

Or, to paraphrase the sweet Elizabeth Barrett Browning

How might the Medical Regulatory Complex screw thee over, Doctor? Let me count the ways …

In the next several pieces, we're going to focus on two major clusters of potential ADA violations by MLBs, hospitals, and PHPs.

These 2 clusters are those in the licensure (Title 1) and credentialing (Title 1 +/- Title 3) application arena; and those pertaining to hospital (Title 1) and board-ordered (Title 2) medical exams, predominantly of a mental health nature, conducted via the PHP enterprise (Title 2 and/or Title 3) on the basis of a complaint of suspected occupational impairment due to a mental illness or substance abuse.¹ The submitted concern is often weightily paired with some implication or institutional accusation of being “unsafe to practice.” As we’ll see in subsequent pieces, this particular allegation is of such immense implication that it just as soon be considered a career death threat.

These violation clusters actually encompass numerous ADA-proscribed practices, some explicitly stipulated in their governing Title, others implied using similar reasoning articulated in other Titles. The prohibited practices fall under these broad categories of activities:

• impermissible inquiry;

• discriminatory ineligibility;

• unwarranted scrutiny;

• impermissible medical exam;

• interruption of medical treatment;

• invasion of privacy;

• excessive testing;

• surcharge;

• allegation of disability-related direct threat;

• lack of individualized case analysis and disposition;

• denial of reasonable accommodation;

• improper termination; and

• retaliation for asserting one’s ADA rights.

Again, at the outset, a very important disclaimer. I’m not a lawyer and this isn’t legal advice.²

While the hospitals at which physicians are credentialed and may be employed are subject to ADA under Titles 1 & 3, both the impermissible questions on license, employment, and credentialing applications and the increasingly liberal use of weaponized “impairment-due-to-disability” and “direct threat due to alleged impairment” allegations ultimately lead to the MLB’s scrutiny and to ADA-subject medical exam provisions. They may also lead to career-jeopardizing reporting to the ensconced federal recorder of all adverse licensure actions – regardless of merit or denial of due process, the NPDB.³

Needless to say, the harms caused by such ADA violations can be severe and irreparable.

A cautionary note about the applicability of selected parts (Titles) of the ADA to other Titles: in brief, stipulations contained within one Title (e.g. medical exams and Title 1 employers) don’t necessarily translate to Title 2 entities (e.g. MLBs). Please see FN 1)

Before we delve into the 1st cluster (impermissible inquiry, unwarranted scrutiny, and discriminatory ineligibility), it’s vitally important to know some relevant legal history pertaining to medical boards.

Medical licensing boards (MLBs) are considered to be governmental instrumentalities (if not explicitly state agencies), and as such are subject to Title 2 of the ADA.⁴

Despite the ADA being in full effect for more than three decades, through the present about 50% of MLBs still ask ADA-impermissible questions about disability on their licensure applications and renewals. ⁵

US DOJ and Medical Boards – Not Their First Time In Court About ADA Violations

It’s been exactly 30 years since the seminal NJ state court case – New Jersey Medical Society v. New Jersey Medical Board (“Jacobs”) – where the state medical society sued the state medical board for asking impermissible licensure questions on its renewal application. This of course was at a quaint time when medical societies actually advocated for physician well-being and had the chutzpah to challenge regulatory authorities and other menacing powers. (Imagine!) Now, unfortunately, many medical societies proudly proclaim their parentage of the PHP movement, a RICO-like national enterprise that has all but regulatorily hijacked the formerly beneficent physician well-being movement.

The NJ Medical Society argued that the invasive licensure questions substantially violated the then-recently enacted ADA.⁶

And the issue wasn't just the impermissible nature of the questions themselves, intrusive though they were and compelling disclosure of ultrasensitive PHI. It was the consequential discriminatory harm that would come from answering those questions. In that case, and specifically referenced in the Senators’ letter, US DOJ wrote an amicus curiae brief supporting the plaintiff New Jersey Medical Society.⁷ 

DOJ’s brief is by far the most eloquent restatement of the principles of the ADA you’ll find anywhere, especially as they pertain specifically to medical boards.⁸ (As governmental entities, medical boards are governed by Title 2, enforced specifically by US DOJ.) The amicus explains precisely why US DOJ felt the New Jersey Medical Board’s application inquiries were in violation of the ADA.

In its succinct brief, DOJ iterated the multiple components of harm and further elaborated on their ripple effects. 

Because of its crisp eloquence that so perfectly captures ADA’s essence, I’ve taken the liberty of extracting key quotes from it. Even though I will select various of these for placement in other sections of the series, I'm offering them here as a compilation (not in the order they appear in the brief) so that you can appreciate the powerful thrust of that amicus in its fullness.

“The licensure questions at issue in this case target for further investigation those individuals who have histories or diagnoses of disabilities.  A core purpose of the ADA is the elimination of barriers caused by the use of stereotypic assumptions "that are not truly indicative of the individual ability of [persons with disabilities] to participate in, and contribute to, society."  42 U.S.C. §12101(a)(7).  

“Diagnosis or treatment for a mental disorder or substance dependency provides no basis for assuming that these disabilities will affect behavior.”

“The Board's inquiries discriminate against doctors with disabilities in the relicensure process because the Board utilizes the challenged inquiries [the violative questions that the New Jersey Medical Society is suing over] to identify individuals for further investigation on the basis of disability.”

“The Board's licensure application does not focus on actual, current impairments of physicians' abilities or functions; on the contrary, the questions at issue are extremely broad in scope and are not narrowly tailored to determine current fitness to practice medicine.”

“While the Board may believe that using a screening device such as disability is a quick and easy method of separating out who warrants further investigation and who does not, the use of mental or physical disability as a "red flag" to conduct further investigation of a person for unfitness to practice medicine is precisely the sort of conclusory jump which the ADA was enacted to combat.”

“As we demonstrate below, this investigative process places greater burdens on doctors with disabilities than those placed on others.  Moreover, these additional burdens are unnecessary in determining whether applicants meet the essential eligibility requirements for relicensure.”

“During the ensuing investigative process, certain [physicians who are members of the plaintiff Medical Society] are singled out because of their disabilities and are forced to reveal information of a highly personal and potentially embarrassing nature.  Once applicants affirm that they have experienced a psychiatric illness, substance dependency, or have taken leave or have been terminated for reasons of disability or substance dependency, they must provide additional detailed information beyond what is required by the application form.”

“Mental health treatment is often bound up with intensely personal issues such as family relationships and bereavement.  The Board's relicensure inquiry is invasive not only because it requires persons who answer the questions in the affirmative to provide information about these issues, but requires them to disclose details about what is arguably the most private part of human existence -- a person's inner mental and emotional state.”

By categorizing persons with disabilities as potentially unfit and imposing additional burdens of investigation upon them, the Board is engaging in precisely the kind of impermissible stereotyping that the ADA proscribes.”

No PHP In Picture – Yet

Realize that, at that time, the PHP franchise had not yet consolidated into the Frankenstein RICO it has become, and not yet implanted itself as the white-coated brass knuckle interrogator exclusively hired by the medical board to ‘weed out potentially defective docs (as determined by the franchise) so they wouldn't harm New Jersey's citizens.’⁹

After all, the NJ MLB would argue, “we're just trying to do our job to ‘protect the public’.” This is the oh-so-valiant refrain that recurs in each of the cases of governmental ADA violation that the Senators cited. And it's one that MLBs and PHPs cry out at every opportunity while newly creating a moral panic (with the alarmist propaganda help of Public Citizen) about allegedly rampant physician misbehavior. 

Reduced to its basics, it is essentially saying “we, the NJ Medical Board, have the right to harm any part of the licensee community we select as potentially risky to quality patient care because we are proactively protecting society from those we and our specially selected medical evaluators and secret committees infallibly deem as posing a risk.”

It's not much of a leap to see how this divine omniscience might lead to a “you're guilty [of whatever impairment we say you have] until you – at great cost and even greater odds –can prove you’re innocent.¹⁰

Have you been harmed by a medical board’s, PHP’s, or hospital entity’s violations of the ADA? If so, DOJ wants – needs – to hear from you.

In response to the urgent need for harmed physicians to have a safe space to share their story, support each other, and explore avenues of justice, three months ago I and two physician colleagues started a weekly group. With the onset of DOJ’s call for those harmed by ADA violations by these entities to come forward, we immediately devoted our efforts to helping docs understand how the ADA applied to their plight and then submit their concise complaints to DOJ.

We are greatly hopeful about the senators’ and DOJ’s investigative efforts. Most in our confidential group have prepared the first draft of their complaint; several have submitted their ADA-focused complaints to DOJ as well as to the three senators (Sens Wyden, Merkley, and Booker).

Is DOJ Listening?

One member met at length last week with two senior DOJ attorneys.

We’re deeply heartened that in the past week alone, three of our group members have received personal responses from lawyers at DOJ’s DC headquarters, or their own US senator, or their state legislator. One member promptly received an invitation for an in-depth conversation with two senior DOJ attorneys investigating these ADA abuses. Their conversation was quite probing, and the DOJ attorneys were deeply appreciative, and concerned, and actually, at least per that member’s recounting, seemed a bit in disbelief at the magnitude and scope of the offenses.

We help harmed physicians concisely tell their story of rights abuses.

To help physicians tell their story of rights abuses related to their mental health matters that are explicitly governed by the ADA, we’ve found it extremely important to help our group members learn how to tell their story concisely, and in this present focus, understand how the harms they have experienced are due to violation of their ADA rights. Many have irreparably and wrongfully had their licenses suspended, revoked, or non-renewed by these ADA-violative actions taken by boards, PHPs, and hospitals where they’ve been on staff. None has been able to obtain justice.

Until now.

We’re confident that the Senators and DOJ truly want to understand and compel legal accountability of these powerful and yet fully immune and non-overseen entities.

If you’ve been harmed by a medical board, a PHP, or a hospital on the basis of their abuse of your rights under the ADA as pertain to discriminatory treatment for your having, or even just being alleged wrongly to have, a mental health or substance abuse condition, and forced into their privatized, due process-deprived system of non-impartial evaluation and board or hospital-compelled treatment and lengthy monitoring, you really ought to join our PHP/Med Board Trauma Recovery Group. ¹¹ We can help you tell your story to the Senators and to DOJ so that they will have the fullest understanding of the severity of the harms and what they need to do to correct them.

A Very Promising Approach To Achieving Justice

And … you’ll not only come away feeling heard and supported by peers who’ve experienced similar mistreatment, but you’ll also gain a whole new perspective on your rights (under ADA and other laws) and how you might pursue getting the justice you’re owed.

Join us, and be a part of this ground-breaking initiative to finally bring accountability to these ADA violators and help restore compassion in medicine and respect for physicians’ rights.

Next up … a deeper dive into impermissible inquiry, discriminatory ineligibility, and unwarranted scrutiny.

1. It’s critical to understand which ADA TItle an offending entity may be subject to as the stipulations in any one Title are not automatically inheritable in other titles. For example, while Title 1 has lots of stipulations and interpretative guidance (by EEOC, its enforcing authority) on the conduct of medical exams and their requisite confidentiality, Title 2 doesn’t offer such, although the enforcing authority’s (DOJ) guidelines do elaborate a bit more, essentially incorporating the overall principles.

2. Remember again, I am a physician, not a lawyer. And by dint of which what I write is neither legal exegesis nor legal advice. For a fuller explanation of why this disclaimer is important, please see Part 2 of this series. I’m simply a medical peer sharing what I’ve learned about the nature of harms experienced by physicians and the diverse array of laws, guidelines, and principles that might inform them of legally protected rights of which they may be, like I had been, completely unaware. These articles are only this physician’s take on the law and its potential applicability to some physicians’ challenges.

3. An entry into the NPDB is like getting on Santa’s baddie list when you’re five years old for a minor misdeed and for the rest of your living Christmases being assured you’ll get coal in your stocking and wrapped cow patties for presents. Teachers and employers will automatically assume you’re trouble. Once that irreversible entry is made, you’ll be lucky if you can get a volunteer job as a Walmart greeter. Yes, even if you’re over 65, wear an American flag on your lapel and adorn yourself with patriotic veteran attire. It’s that career-lethal.

4. It would seem apparent that numerous MLBs either don’t have active governmental oversight or at least a knowledgeable healthcare compliance attorney, or … they just don’t give a damn and feel they can play the odds of nobody making a stink if they violate the law.

And truth be told, when you stack the legal and legislative deck; and pre-select non-neutral FFDE medical exam evaluators who have a financial conflict of interest; deny due process in challenging an unwarranted medical exam; deny access to one’s PHP medical exam record; prohibit fully qualified independent medical exam; threaten nationwide license revocation if you challenge these abuses; operate with procedural opacity; enjoy complete immunity; and have the ‘wink-wink, do whatever you want’ complicity of state government, I guess it’s no surprise you’d feel confident in playing those odds.

5. See Wible P, and Palermini A. (2019, Aug 22). Physician-friendly states for mental health: a review of medical boards.[Blog post]. Retrieved from https://www.idealmedicalcare.org/physician-friendly-states-for-mental-health-a-review-of-medical-boards/

6. Itself a bold example of landmark legislation that also was brought forth, with great effort, in a remarkable spirit of upholding our creed of equal opportunity, self-empowerment, and human compassion for the well-being of each other. Oh, for the days ….

7. The seminal material regarding ADA Title 2 entities’ permissible licensure questions and their rationale for establishing such parameters can be found in an amicus brief US DOJ filed in the 1993 NJ Medical Society v NJ Medical Board (Jacobs) case. (I'll soon PDF the brief and make it available.) (“Amicus curiae” translated as “friend of the court.” This is a brief allowed by the court to be submitted by knowledge experts who expound on key legal doctrines in support of one party’s basis for their argument.)

8. Thus there is utterly no legitimate reason why boards and PHPs and their national organizations FSMB and FSPHP and healthcare entities such as employing and credentialing hospitals should not have adhered to ADA’s explicit stipulations. One explanation might be that they themselves hold a secret hostile animus toward disability in general and hoped that not mentioning ADA would allow it to fade from licensee awareness and institutional memory. In other words, covert complicity in not complying. Any surprise it’s so difficult finding a ‘professional license defense’ attorney who even knows that ADA exists and likely applies to just about any physician who’s been alleged to have a disability-related impairment affecting their performance. It seems to be the same sort of passive complicity that state governments manifest in their “monkey see / hear no evil” game disregarding licensee concerns about licensure harms by MLBs and their ongoing willful non-oversight of medical boards and of their exclusively contracted PHPs that have regulatorily captured them.

9. It's a franchise that has implanted itself via nationwide regulatory and cognitive capture as the exclusive MLB medical FFDE evaluator, and one that many believe constitutes a virtual physician impairment rehabilitation RICO.

10. It apparently escapes the awareness of these authorities that this is nearly identical to the prosecutorial logic of the Salem witch trials: “If she drowns, she was a witch. If she floats, she may not be a witch.” And taking this theater-of-the-absurd reasoning to new heights, “but if she floats, then that must mean that she must be lying, and we have to test her again.”

11. Yes, you don’t have to actually HAVE the alleged impairing disability. The fact that the entity has regarded you as having that impairment (i.e. disability), you are a person who is fully covered under ADA’s expansive protections.