Part 5 - Impermissible Discriminatory Disability Inquiries on Licensure, Employment, and Credentialing Applications – One Way MLBs and Hospitals May Violate Physicians' ADA Rights

"Have you ever in your life been depressed, worried, had an angry outburst, said something inappropriate, been sent to the principal's office, looked at dirty magazines, or drank too much?"

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

(This is Part 5 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 its 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.)

Again, at the outset, a very important disclaimer. I’m not a lawyer and this isn’t legal advice.¹

Impermissible Inquiry – Relevant Legal History Pertaining to Medical Boards

Now, let's look at the most glaringly obvious manifestation of ADA violation, that of the impermissible licensure application inquiry.

Let’s be clear about what aspect of the ADA applies to medical licensing boards: MLBs are considered to be governmental instrumentalities if not explicitly state agencies, and as such, they are subject to Title 2 of the ADA.²

The ADA’s been in full effect for 33 years! The seminal ADA case in which DOJ came close to joining with group of docs and suing a medical board was the Jacobs case in 1993. And yet, through the present, about 50% of MLBs still ask ADA-impermissible questions about disability on their licensure applications and renewals.³ And likely, so too do hospitals on their employment and credentialing applications.

Now, there’s been a recent push (by the Joint Commission, imagine!) to encourage boards to remove the intrusive mental health questions from applications. And earlier, the Federation of State Medical Boards and some of its saintly acolytes encouraged boards to do the same, arguing that it would help poor docs feel safer getting mental health care since so many seemed to be having a hard time taking the heat. Such a magnanimous spirit!

Do I really believe that MLBs have suddenly become sensitive physician advocates really concerned about physician wellbeing? Not a chance in hell. They’re doing it because their abuse of the ADA, read ‘violation of law,’ is coming into sharp focus.

It certainly is, with 3 US Senators and US DOJ’s Civil Rights Division all but screaming “what in the hell are you people thinking?! Do any of you know that you have to follow the law? Do you have any lawyers on your staff who know the law?”

US DOJ and Medical Boards – Not Their First Time In Court About ADA Violations. Likely, Not Their Last.

We explored the Jacobs decision in 1993 where the NJ Medical SOCIETY sued the NJ Medical BOARD for asking impermissible licensure questions on its license renewal application in violation of the recently enacted ADA. Since that time, it seems that medical societies, MLBs and PHPs have all but fused. In fact, in one state – NC – they’re in a virtual contract with each other, the NC Medical Society being NCPHP’s parent, NCMB paying half its budget, the med society appointing people on its board, and MLB members rotating through these three entities like they’re just plug-and-play. When’s the last time a medical society went up against a medical board and fought for its members’ rights? Oh, probably about 1993.

Keep in mind, the issue at stake, then and now, is not just the impermissible nature of the questions themselves, invasively intrusive though they are. It is the consequential discriminatory harm that comes from answering those questions, not least of which is being sent into PHP hell. As specifically referenced in the Senators’ letter, in that case, DOJ wrote an eloquent amicus curiae brief in support of the plaintiff New Jersey Medical Society. 

DOJ’s amicus expounded on the nature of the harm and exactly why these questions are in violation of the ADA and further elaborated on their ripple effects. 

While referenced in the previous piece, I republish these quotes because they are such a concise summation of the core principles of the ADA as pertain to MLBs. So as to capture the applicable terminology, I’ve given titles to each of the excerpted quotes.

Non-eligibility on basis of discriminatory stereotype of selected disability.

“The licensure questions at issue in this case target for further investigation those individuals who have histories [“record of”] or diagnoses [“current”] 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).  

Board employs erroneous reasoning to automatically equate certain disabilities to current impairment.

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

The discriminatory inquiry engenders further – and unwarranted – scrutiny.

“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 focus is wrongfully on a category of disability it has presumed to be problematic or potentially so, and not on an individual’s capability regardless of the existence 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.”

Medical Board employs erroneous reasoning in using a selected disability as a screening device.

“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.”

The Board’s selective and unwarranted scrutiny imposes diverse burdens on those singled out. Further, it does nothing to demonstrate applicants’ eligibility.

“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.”

The unwarranted and impermissible scrutiny is deeply privacy-invasive and thus further burdensome.

“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.”

Besides being generally privacy-invasive and burdensome, they are psychologically invasive, if not also assaultive. The inquiry itself, its detailed response demanded under penalty of law in the name of the state, may cause harm.

“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.”

All elements considered, this medical board’s multiple ADA component violations constitute unlawful eligibility exclusion practices. Each singly considered is a violation. Considered collectively, they are a compound violation resulting in more than simply the additive harms. They comprise the very discriminatory behaviors that the ADA was specifically enacted to prohibit.

By [automatically] categorizing persons with disabilities as potentially unfit and [then further] 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

In 1993, the still nascent (and presumably beneficent) PHP enterprise had not yet consolidated into the ravenous FFDE evaluator and referral hub it seems to have become. It had not yet implanted itself as the white-coated, brass-knuckle interrogator of all things mental, behavioral, and substance use-related, exclusively contracted (if not also paid) by the medical board to weed out potentially defective docs (as infallibly determined by the franchise) so they wouldn't harm New Jersey's citizens.⁴

“We're just trying to do our job to ‘protect the public’.”

In its defense, the NJ MLB would argue, “we're just trying to do our job to ‘protect the public’.” We see this same oh-so-valiant refrain in the next seminal case pertaining to impermissible inquiry and related harms, the DOJ’s 2014 case against the Louisiana Bar and the LA Supreme Court (the Bar’s governmental overseer that also didn’t seem to have the budget for a compliance attorney). (There does seem to be a pattern here about imperial boards and their supreme dictates and having very little self-awareness that they’re violating federal law.)

In that case, another stunning piece of elegantly crisp DOJ work, several newly graduated JDs were subjected to the LA Bar’s impermissible questions about mental health history and, once self-identified, were then subjected to closer scrutiny, some to psychiatric evaluation, others having to provide extensive records to show that they’re really, really okay. (It’s quite the board rage these days: “We’re going to harass you and make you crazy until you can prove you’re not crazy ... to our satisfaction, of course.”)

What the LA Bar was then doing, even after all this harangue, was giving the JDs their license to practice but only a probational one. Their license was stamped “Look out, s/he could be crazy. This warning lasts five years.” (What’s this fixation with boards and five years? Is there something biblical I’m missing?)

DOJ tells them to get rid of the offending questions. The LA barristers who got the DOJ notices apparently only communicate in Cajun and said they didn’t need to change anything - DOJ must have it all wrong; you see, we’re just trying to protect the public.

DOJ says “Ahem, excuse me, perhaps you didn’t understand.” To which (I’m reading between the lines of the final settlement letter, truly a work of art) the LA Bar had the temerity to respond “oh stop! You’re making a big deal out of nothing, let’s party.” And to which DOJ said “right after Mardi Gras, when it’s Ash Wednesday and you people put ashes on your forehead to repent … we’re going to start you on a 5 year repentence plan. You’re going to remove the questions. You’re going to admit these lawyers without condition. You’re going to contact all others you’ve also provisionally accepted and remove the provisional. You’re going to track down every reference to those lawyers’ writing, and if it has any reference to their being “provisional”, you’re going to put that record under seal until that reference can be corrected and removed. You’re going to pay for the psychiatric rigmarole you put them through. And, we’re putting you, kings of the carnival that is the LA Bar, on a five-year monitoring program. Yes, all your bar applications will be reviewed by us. Sign on the dotted line right now, or we take you to court. Ours.”

Sure enough, they signed. (And, sure enough, DOJ DID put them on the 5-year watch! My dear colleague Tom Horiagon [alas, now deceased] obtained the FOIA documents!)

Even more recently, though on a different ADA matter, DOJ blew the doors down on the Indiana Board of Nursing. They were refusing to allow nurses who were on medication-assisted treatment into their PHP-like program (aptly named I SNAP) and thus they’d never be able to get their licenses back. One nurse’s refusal to back down and her going directly to DOJ’s Civil Rights Division via a complaint resulted in another “Knock, knock, we’re from the DOJ, and you’re violating the ADA” / “No we’re not, we’re the INBON and you can’t tell us what to do” exchange. Longer story of course, but in short, Nurse Ratched finally said “Well, okay, I guess we’ll do it your way.” DOJ had threatened similar legal excavation of the entire enterprise.

Now, taken together – ‘93 Jacobs, 2014’s LA Bar, and 2020’s IN BON cases, all ADA, all Title 2 government agencies, all ultimately saying “yes, it appears you’re correct, Attorney General, we accept your guidance on helping us correct our ADA abusive ways” – all seem to this admittedly naive non-JD observer to be harbingers of good tidings regarding the imperious MLB-PHP operation’s trampling the ADA with reckless abandon.

Let me again speculate that the main reason these ADA concerns are suddenly so central (apart from the mere fact that they’ve finally been noticed at a sufficiently high level) is that three Senators and key people at the DOJ are deeply concerned about the new (to them) realization that a) docs can’t get help for mental health concerns for fear of having their careers annihilated by their medical boards; and b) even if they are mandated by these boards or hospitals to get help, their careers will be destroyed by being sent (for evaluation and treatment of their wretched souls) into PHP hell where they will live under fear of being publicly shamed and will return to the world from their nightmarish bankrupting experience indelibly embittered. One might imagine the Senators asking incredulously “what in the hell … isn’t that against the law?! And DOJ saying “well yes, but nobody but you has even given us a hint there might be a problem. We thought the states were overseeing these boards and we presumed surely they wouldn’t let their own agencies break the law. We’re stunned too. We don’t even know where to begin, ‘cause everybody’s either dead or afraid to talk.”

So, let’s take a closer look at the types of violations that the Jacobs and LA Bar cases centered around.

Permissible and Impermissible Inquiry – The “Gill-net” Type of ADA Violation on Professional Licensure Applications

In the previous piece, I listed the gamut of potential ADA violations MRTC players – MLBs, PHPs, and hospitals – might be routinely committing. And amongst them were what I would consider the “front-gate entrance” violations: impermissible inquiry, discriminatory ineligibility, and unwarranted scrutiny (to which is almost invariably tied excessive testing and imposition of a whopper of a surcharge for the entire ordeal).

I’ve come to think of this sort of discriminatory screening as similar to a gill net in the fishing industry.

“What’s wrong with this? We catch the fish we want, we let the others go!”

In a gill net type screening, just as the net is designed to catch certain size fish, and even certain types of fish, considering where it’s placed, so too the impermissible questions. What you screen for is the fisherman’s choice. The antidiscriminatory thrust of the ADA holds that it’s impermissible to use an application in a manner that serves the purpose of screening out those with disabilities simply because of presumptions you may have about those disabilities.

The questions that a Title 1 (employer) entity can ask (in the initial application) under ADA pertaining to disability are limited to those seeking to determine if there are limitations of any sort that currently impact, or the individual believes could reasonably be anticipated to impact, the performance of the specific job. (In the Jacobs and LA Bar cases – both Title 2 – it appears that the DOJ used parallel reasoning as articulated in Title 1 in its “impermissible inquiry” doctrine.⁵

To reference again DOJ’s Jacobs amicus brief:

“The licensure questions at issue in this case target for further investigation those individuals who have histories [“record of”] or [current] 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).  

“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.”

In other words, a board that for whatever reason has established a high index of suspicion for disability XYZ and asks questions to ferret it out (e.g. Have you ever been treated for a mental health concern? Have you ever been on psychiatric medications? …) is likely violating ADA via its impermissible inquiry that will lead to unwarranted scrutiny and may result in discriminatorily based licensure ineligibility.

It’s important to understand the key difference between impermissibly screening for selected diagnostic conditions or disabilities as a whole class, e.g. everybody who has or ever has had any psychological issues; and asking applicants about whether they have a medical condition – whatever it may be – that currently limits their ability to perform the specific duties of the job applied for. Under ADA, you can’t select out for a class of disorders.⁶

When you examine this anti-discrimination provision in light of the central tenets cited in the brief, you begin to understand the thrust of the ADA and how questions that deviate from its stipulations may at first glance appear reasonable but are quite discriminatory and harmful to the selected class.

Allow me to drill down further:

In the example of psychological illness, as I see it, an impermissible inquiry violation, from the outset, is actually a threefold violation: 1) selecting a single class based on your stereotype of presumed deficiency (e.g. those with a history, or current symptoms, of depression); 2) compelling applicants to both disclose and elaborate on it; and then 3) on the heels of identifying that class and demanding full disclosure under penalty of law either rejecting them outright or subjecting them to special scrutiny and further testing (whether records review, direct inquiry, or psych assessment [or full psychiatric biopsy]) to determine if any of these individuals with a current or past history of depression might have a limitation that could possibly affect their performance.

This closer scrutiny may or may not involve extra (“excessive”) testing and financial burden (“surcharge”); and as we will see, these can constitute their own “component violation” separate from the class selection and special scrutiny.⁷

The chosen criteria for being in this selected to-be-scrutinized class are essentially at the whim of the organization. You see, in our example asking about psych history, you discover it doesn’t ask about angina or migraines …. Why not screen for them? I mean, couldn’t those be a danger?

An impermissible screening is done either because a) you don't want anyone with that condition to have the job; b) because you hold unwarranted presumptions about that condition; or c) because you plan on subjecting them to extra scrutiny, manifestly to eliminate any with that condition who may currently or even in the future affect their job performance. (This is the “potential for impairment” criterion that PHPs pose as a legitimate basis for a $10,000 polygraph-assisted mental health examination, one that their financially-conflicted MLBs order compliance with under threat of public license revocation. In other words, accept what the PHP says you have using their own uniquely-conceived diagnostic and prognostic criteria, pay to prove that you don’t (using our crack diagnostic team’s infallible 4-day evaluation paid for from your wallet), and if you don’t, we’ll assassinate your career in the public square by sunrise tomorrow. What could possibly be wrong with that?)

“But, wait … the MRTC brings unwarranted scrutiny and excessive testing to a whole new realm!”

In the MLB, PHP, and peer review arena, it gets into really dangerous territory when they’ve set up their own assessment and treatment industry using idiosyncratic criteria to conduct the closer scrutiny and to operate their FFDE assessment boot camp.

Yet another dimension about any such enterprise is the realization that to keep the FFDE boot camp running at profit, you’ve got to keep sending a steady stream of specially selected vulnerable people for scrutiny and testing. It of course helps when you can terrorize such persons into believing that they have no right to contest this, and that daring to do so will immediately and irreparably pose great jeopardy to their occupational livelihood, not only in the currently applied-for state, but in all other states in the country, now and forever.

From a business standpoint, I guess it's not difficult to imagine that the growth of such a profitable fitness-for-duty assessment operation could itself then start driving the disability screening system by subtly (or not so subtly) encouraging the enlargement of the selected disability class pool. (For example, PHPs interest in labeling burnout - 50% incidence - as depression, qualifying it as both a mental illness and a potential danger to public safety.)

It could then get critically dangerous when that FFDE assessment boot camp franchise, one that has regulatorily captured the licensing authority, modifies the definitional criteria of that screened class to virtually ensure that the boot camp-ready pool maintains sufficient members. Driven by such profit motive, it could, without accountable oversight, become an ever-expanding industry.⁸ Given its preferential position as the sole choice of FFDE evaluator, it could also modify its definitional criteria for a diagnosis to accord with the whims of the referring entity, here the MLB. In fact, there's clear evidence it already has.⁹

As many physicians have discovered, it’s been almost entirely futile to try to pursue MLB / PHP offenses through litigation or through imploring state overseer intervention. And that’s why the Senators’ and US DOJ’s active scrutiny right now is so critically important.

Is your MLB or hospital (as employer and/or privilege-granter) asking such impermissible questions? Have you or other docs been subjected to unwarranted scrutiny and possibly referred to the PHP for examination on this basis? Now is the time to notify DOJ through its portal.

Want help making sense of the injustice you’ve suffered as a result of these violations and exploring options? Check out this unique weekly gathering I co-lead.

1. 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. These articles are only this physician’s take on the law and its potential applicability.

2. Why would MLBs, those saintly-beyond-question creatures of state, ever break the law? My goodness, such apostasy I dare speak! My review suggests that many MLBs have been cut a LOT of slack by the state governments which have chosen not to oversee them, and by the courts which have been told that they’re saintly and shouldn’t be questioned. And it also seems apparent that they don’t have a knowledgeable healthcare compliance attorney on board (and maybe don’t want one mucking up their deal). Given the MRTC’s amnesia about the ADA and the ‘93 Jacobs decision (isn’t it amazing how even that case’s documents are so difficult to find!? Like “poof,” it didn’t happen.)

But there’s another possibility too. Maybe in their imperial arrogance, they just don’t give a damn what law pertains and feel they can play the odds of nobody making a stink if they violate the law and ruin a couple a hundred docs lives here and there. After all, no state oversight. Few lawyers know the law. Boards and PHPs have great PR. (“Pay no mind, judge, they’re just angry drunks and nut cases whining “unfair.”) And truth be told, when you stack the legal and legislative deck, it’s no surprise you’d feel confident in playing those odds.

3. 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/

4. 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.

5. ADA’s statutory stipulations and agency regulations and the associated agency guidance documents are not interchangeable between the Titles. DOJ’s impermissible inquiry focus in the Jacob’s and LA Bar cases thus was likely based on its applying similar anti-discriminatory principles in the Title 1 sector to the Title 2 & 3 licensing and credentialing arenas. In the Title 2 arena, the impermissible questions and sequelae were impermissible because the discriminatory animus was used to deprive qualified individuals of certain public services to which they were entitled fair consideration, namely their receipt of unhindered licensure. Putting applicants through an unjustified ordeal was seen as a manifestation of discriminatory ineligibility.

Thus, this 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 in Title 1 employment situations) don’t necessarily directly crossover to Title 2 (e.g. MLBs) entities. BUT … using similar reasoning, and based also on the enforcing agency’s study of Congressional intent and their own studied guidelines, a strong argument could be made for their applicability.

6. Unless not having the functions associated with that specific disability itself is explicitly a core disqualifier.

7. Please note here that this notion of a “component violation” is my own conceptual phraseology. I’m taking a core concept, here impermissible inquiry in the pre-employment application stage, and teasing apart what appear to be its component violative elements. There is, to my knowledge, no such breakdown in the law or guidelines.

8. Many may not know that the PHP “Gold Standard” approach is striving to make inroads into other licensed professions. Very recent stories indicate a campaign to similarly regulatorily capture the legal industry. Ignoring for a moment the likely systematic compound violation of ADA, HIPAA, 42 CFR Part 2, and Sherman, and the routinized commission of diagnostic fraud, combined with systematized denial of due process, it could really be quite the lucrative opportunity. That is, as long as nobody raises a stink.

9. Did you know that this Physician Impairment RICO can make a diagnosis of substance use disorder relapse but use their own made-up criteria to incorporate an official sounding diagnosis that is nowhere to be found in the official Diagnostic and Statistical Manual? A diagnosis they termed “relapse without use.” And the physician so diagnosed by the so-called physician health program will have no say in contesting this because the MLB has already determined that the PHP is infallible and thus the physician so diagnosed by it may be sent back to one of the MLB-PHP’s “preferred centers,” one selected on no discernible criteria apart from pricey ads in the annual FSPHP conference brochure. These “preferred centers” employ polygraph interrogators and, of course, their word is also infallible because they use a machine with wires and they’re employed by what the gullible licensee is led to believe is a legitimate medical center.

Once this determination is made, this beyond-question faux medical center can recommend to the referring PHP (often right after private discussion excluding the subject physician) that the doc be sent for three months of in-patient hospitalization at yet another carefully curated center specializing in physician impairment, one endorsing the same profit-driven “lengthy stay ‘acknowledging you’re powerless’ is the only cure - the Gold standard” philosophy at a cost of about $30,000 per month, out of pocket.

Even a casual read of the US Surgeon General’s well-conceived report (Addiction.SurgeonGeneral.gov) on comprehensive approaches to substance abuse treatment would quickly reveal this market-cornering approach to physician rehabilitation – voluntarily entered into at career gunpoint – to be a flagrantly anti-competitive and anti-consumer operation.