PHPs: Critical Look - The Full Kebab of Takeaways
Key points to avert career disaster. All on one skewer.
As promised, here are the remaining key takeaways from our presentation last month “Physician Health Programs (PHPs): A Critical Look.” (Here’s a link to the replay of Part 1 of the webinar; we’re redoing Part 2 as there was such a plethora of technological snafus that it can turn you into a conspiracy theorist.1)
Our Goal - Provide Physicians with Sufficient Information to Make the Wisest Decisions
First, a reminder why we offered this presentation. We’ve recognized over the course of years of study and talking with - cumulatively - well over a thousand physicians nationwide that there are powerful forces that have life-and-death say-so over physicians’ careers. When you think about the decisional paradigm employed by medical boards (MLBs) and health care entities such as the teaching and community hospitals (referred to as health care entities or HCEs) pertaining to physician clinical behavior, there are basically two paths: disciplinary or impairment.
You can have a disciplinary charge, e.g. inappropriate prescribing; non-adherence to accepted practice norms; and unprofessional behavior, amongst many others. Or you can have an allegation of impairment affecting professional performance.
We won’t here go into the distinctions among illness, disability, and impairment. But make note – these are crucially important concepts and they play a decisional role in the MLBs’ and HCEs’ referrals for FFDE (fitness for duty evaluation) by the PHP (physician health program) complex, and in physicians’ rights under the ADA (Americans with Disabilities Act).
We’ll also mention here that there are circumstances where there is a disciplinary charge e.g. unprofessional behavior, and there is a question of impairment.
For our purposes here, to provide the most straightforward overview, we’re focusing on the straight “evaluate for impairment” path.
What we heard repeatedly is that from the time of the MLB’s or HCE’s referral to the affiliated PHP, a lot happens quickly and decisions must be made regarding the PHP referral and its intake and subsequent referrals for further assessment and treatment. In many cases, the urgency may not be warranted, especially in those cases where the subject physician has been coerced into signing a temporary NPA (“non-practice agreement”).
And it’s both because of the weighty implications of any decision that the physician makes as to how to proceed and the MLB’s and HCE’s – and the PHP’s as well – pressure to cooperate immediately with the PHP eval and its findings and recommendations, that we felt compelled to caution physicians from reflexly pursuing a course that could actually be detrimental to their careers and wellbeing.
We want them to have sufficient information regarding this generally unseen state-endorsed evaluation process so as to make the wisest decisions, being mindful of the importance of addressing legitimately alleged concerns while maximally protecting their due process, civil, and other rights.
Key Points - and Two Disclaimers
While the points highlighted below are concise bullet point take-aways, please realize they do not constitute legal advice. As I’ve said before, exclaiming nuggets of legal wisdom from me in a court of law is more likely to get you a endless menu of chicken mcnuggets in a cell. And second disclaimer: while these points were collaboratively presented, the sometimes harsh commentary beneath them is strictly mine. I do not want in any way to infer that my co-presenter endorses my critical commentary.2
Ignorance (or naivete) is not bliss
“Shouldn’t be too worrisome, it’s just a friendly peer-to-peer interview ….”
This is the same sort of naive mindset that fells armchair athletes when they embark without sufficient preparation on a marathon. They just had no idea how grueling it would be. But by the time they’re into it, there’s no turning back.
“What can be so bad about just going along with the evaluation? I mean, after all, if I didn’t do anything wrong, there’s nothing to be afraid of, right?”
What you don’t know can in fact hurt you irreparably. There are many misunderstandings about what the PHP franchise is and does. Many of these are perpetuated by the PHP enterprise itself. And it’s for these reasons that you’ve simply got to take the matter seriously and undertake full study of what the process actually is and how it can play out.
So, especially if faced with a PHP referral, give highest priority to becoming knowledgeable of what a PHP is, what it does, and how it fits in the overall MRTC enterprise.
If you are considering self-referral, or are being coerced into a referral, learn all you can through trustworthy sources prior to any engagement.
Just as in all other judicial matters that rely on due process, you need the guidance of well-informed counsel to help you understand and protect your rights.
Understand the implications of all “recommendations,” orders, consents, and permissions to disclose before agreeing to anything.
You need to know the array of applicable legal & regulatory concerns governing PHPs’ assessment activities.
Why is this important?
Because the risk for career jeopardy is significant. Without actively questioning, you may naively sign your rights away. There are terms that are used that you and most physicians would assume mean one thing and yet in this administrative-judicial r/o impairment context have another dimension of meaning, and it is that meaning that governs both the MRTC and your fragile rights.3
To uphold your rights and your access to remedy, you need to know what the governing law is on the action that was done, what its enforcement mechanism is, and what your rights and access to remedy are.
Remaining unaware of the governing laws, especially those specific to physicians’ rights in these unusual realms (and which many so-called license defense counsel seem not to understand) essentially deprives you of defending yourself on the basis of those applicable rights.
A shocking realization: the court and prosecutor do not care about your ignorance and, especially the latter, may exploit it. You will just about never hear a judge say “well, you really should’ve argued on the basis of this law, not the silly one you chose.”
Understand what a PHP does
It’s important to get down to fundamentals. You may think you understand what a PHP is and does, and what professional guidelines and legal principles it follows. You likely don’t.
Understand that they conduct a variably defined “preliminary assessment” of an alleged impairment due to mental or medical illness, substance abuse, or a behavioral condition possibly affecting clinical performance.
They are conducting this assessment not for your benefit but at the behest of a licensing (MLB) or health care credentialing entity (HCE) where you have privileges.
A PHP’s assessment generally involves at least a screening intake by a clinician of some nature and is often accompanied by drug testing. Such assessments comprise, or are preparatory to, compulsory FFDEs.
Fitness for duty evaluations (FFDE) may be governed by multiple state and federal laws that define your duties of compliance … but are often silent on your rights.
Defining whether the preliminary PHP assessment is regarded as a medical exam is critical in determining whether it is subject to laws governing medical, mental health, and substance abuse matters and what medical confidentiality principles and laws pertain.
In many states, it appears that PHPs’ diagnostic determinations may be considered incontestable and their recommendations converted by the MLB or HCE to orders for immediate compliance under penalty of disciplinary action that could result in suspension or revocation of privileges or license. The implications of such are dire.
Navigating the PHP System
It’s important to develop an approach strategy at the outset. And this often calls for sounding that out with someone in the know.
Your Mental Approach
✓ Don't go it alone. It’s a very dangerous neighborhood.
✓ Get guidance; be aware of what might be asked and what you can or shouldn’t answer.
✓ Don’t rely on your innate innocence to protect you.
✓ Get fully informed about the nature of that PHP’s evaluation protocol prior to submitting to it.
Your Prophylactic Preparation
It’s VITAL that you actively question the referral, and document your inquiry and the responses.
Ask questions so that you fully know what is entailed.
✓ It’s Okay - AND Important - to question a MLB’s referral to a PHP
✓ It’s Okay - AND Important - to question a HCE’s referral to a PHP
Each of these needs to have specific reasons for mandating such a referral.
✓ KEY: Require MLB / HCE to specify what is the reason for referral and what is the question being asked of the evaluator.
✓ It’s Okay AND Important to ask the PHP what is the legal nature of the eval or intake.
✓ For all inquiries, accurately and contemporaneously document – either their response or the fact of non-response.
Seek knowledgeable, experienced counsel.
Do not sign anything under coercion.
Particular types of expertise are required.
Be prepared for the difficulty in finding counsel sufficiently versed both in the matrix of laws that may be pertinent to your case and the administrative complex adjudicating your case.
Insufficient familiarity with one or both can result in decisions that have grave implications for your career.
Do not sign anything under coercion, or without knowing the actual legal meaning and likely consequence of each and every term in any contract or agreement with which you are presented.
Peer support and knowledgeable peer guidance can be immensely helpful.
These can be extremely trying ordeals with no easy answer. Seek out knowledgeable peers and subject matter experts and get support and guidance.
The PHP evaluation itself is not neutral.
Whatever its stated or official designation, realize this is neither a client-centered supportive mental health consultation nor even a neutral evaluation. It is essentially a form of a fitness for duty or perhaps a more extensive forensic psychiatric eval (and as such, of questionable legal authority) that may have profound implications for your capacity to obtain credentialed privileges or to practice in your current state or any state.
Radical self-honesty as though you were talking with a trustworthy therapist is certainly admirable. But this is not the place for such searching self-honesty. This is not therapy, it is not client-centered, and it is neither a neutral nor beneficent evaluation.
Consider seeking an independent exam.
It may be wise to seek concurrent independent tailored evaluation by a trusted entity. And if a clinically significant disorder with impairment implications exists, consider starting a self-initiated treatment and monitoring program BEFORE engaging at any significant level with the PHP.
Be mindful of likely drug testing and inferences that may be drawn.
Also, be aware that some (if not many) may utilize some alcohol biomarker tests that produce false positives. SAMHSA strongly cautioned about their use in such a highly consequential setting.
The overall process.
It’s critically important to commit to comprehensive contemporaneous documentation of all events relating to this PHP evaluation and its sequelae.
Insist on having access to all relevant documentation and procedural options. Document its non-provision.
It may seem a burden but realize, it’s not. Especially should you choose to contest any aspect of the process. Commit to extremely meticulous documentation.
You should contemporaneously memorialize all relevant conversations and interactions electronically - and back up your digital folders regularly. Such interactions would include:
✓ The initial referring entity’s proffered rationale and supporting documentation;
✓ The intake (and evaluation) records of the PHP and its derivative referrals (e.g. other assessment programs)
✓ And your concurrent documentation and commentary of all relevant matters surrounding the PHP referral.
Unfortunately, be prepared for a potentially prolonged and costly ordeal.
Multi-day (3-4 day) assessments.
Be prepared to respond to a PHP recommendation/ MLB order for a costly multi-day diagnostic assessment at a facility “preferred” by the PHP and MLB.
You have the right to question the appropriateness of this order and to have all of your questions about its nature, confidentiality, implications, rights, and financial responsibility sufficiently answered prior to undertaking. Document non-provision of satisfactory answers.
Maintain ongoing informed awareness of PHPs’ nature - in your state and nationally.
PHPs are NOT a primary resource for help no matter how pseudo-beneficent they may promote themselves.
Don’t present to a PHP for help with “minor” psychosocial problems. Specifically, you should never acknowledge Burnout as the PHP franchise has tried to conflate this ubiquitous stress syndrome with mental illness and patient endangerment. Being burned out could result in your being declared a danger to society. (Try finding work with that label!)
Don’t let an employer coerce you to report to a PHP on that basis. The employer must be clear about the reason for referral. Refusal may be reportable to the EEOC as a Title 1 violation of permissible medical examination parameters.4
Are you currently or soon to be involved? Follow this guidance now!
The above pointers are critically important and need to be acted upon.
For those who are currently involved in what they believe is an unfair process, realize that you are not alone; that changes are on the horizon; and that you can play a significant role in that effort to protect your and all physicians’ rights. (An upcoming post on very recent US Senate AND US DOJ activity on ADA violations by state MLBs will highlight some very promising developments.) Persevere, seek support and guidance, connect with advocacy organizations such as CPR and Physician Just Equity, and, together with your attorney, learn as much as you can about ways to deal with this enterprise.
Remind yourself of the critical importance of “self-management” in order to persevere over the course of this often torturous ordeal.
Protecting your career requires actively asserting your rights
Remember: this is not a neutral, beneficence-oriented enterprise
Given PHPs’ alliance with MLBs and their FFDE-oriented mission to assess potential impairment in the context of your clinical performance, this is inherently a non-neutral and potentially adversarial engagement.
Knowledgeably asserting your rights helps other physicians
The future of physician rights pertaining to MLB / HCE-generated PHP involvement relies upon your awareness of your full array of rights and what to do there is a potential rights infringement.
“Who’s got time for this?!”
No one, actually. Certainly not practicing physicians working 60-100 hours /week. This is likely one dynamic of why docs are so easily being pushed – unfairly manipulated – into making decisions about how they are going to engage with the PHP. Because this predatory, non-overseen, state-contracted, self-referring enterprise knows they can frighten you via extortion of your medical license and funnel you into a private for-profit “impaired physician” penal system with complete impunity.
Activism is essential to promote accountability.
Only with full knowledge of the rationale and workings of the current dystopian system can you take definitive action (e.g. legislative; association-level; public visibility, etc.) to protect your, and all, physicians’ rights in these MRTC-alleged impairment matters.
It’s foreign territory for most physicians.
Both for those outside of clinical medicine and even for those clinicians who are in a medical practice but have had limited exposure to MLBs or their HCE’s mandated PHP referral policy, this preparation and extreme caution may seem, well, extreme.
But this is one of those systems where you can’t know how much you really need to know until you’re suddenly immersed in it.5 And by the time you're in it, you've already been pulled out to sea in a riptide.
That’s why it’s so important to have these pointers, and our repeated exhortation, to get as fully informed as possible, and seek out knowledgeable, no b/s resources.
Upcoming – “PHPs: Closer Look” Town Hall, May 3, 8pm ET
With all that in mind, and because our webinar participants were so enthusiastic about the idea, we’re going to have an open Town Meeting on Wed, May 3rd, 8pm ET via Zoom about the material we covered in the webinar. It’ll be a free-form discussion about concerns you may have about PHPs, whether generated from the webinar or more broadly from your own experience and conversations. [To register, double-click the underlined link.]
Hope to see you there!
Register for “PHPs: Closer Look” Town Hall, May 3, 8pm ET
While the music chosen for the intro didn’t come across all that well, it was selected specifically for its lyrics: Crazy, by Gnarls Barkley. Check ‘em out.
Truth be told, after I did the first few drafts of this, I found it more restrained than I felt comfortable with. The more I read Wendy Dean’s excellent and moving new book on moral injury in health care “If I Betray These Words,” and especially her chapter describing Dr. Jay Neufeld’s suicide in the context of his ensnarement in the PHP system and one of its preferred for-profit rehab gulags in Mississippi, I felt I needed to allow myself to be more explicit about my concerns. Again, these sentiments do not necessarily reflect those of either my co-presenter or webinar host PJE.
“Medical Regulatory Therapeutic Complex,” a term we came up with to convey the generally unrecognized interlinked collection of forces that, individually and collectively, can bring a medical career to a screeching halt. See “Systematic Abuse and Misuse of Psychiatry in the Medical Regulatory Therapeutic Complex” available at CPR Resources. And btw, r/o = “rule out.” (Often used in the conclusory portion of a consult known as the “diff’l dx” – the differential diagnosis section where the clinician ponders aloud “well, looks like this, but could be this and this, and b/c of all that, we need to do ABC and better start XYZ.)
By the way, it is coming into clearer view after months of study that under Title 1 of the ADA, employers (e.g. hospitals) who order their employees (salaried physicians) to undergo medical exams (of which a FFDE would be one type) are responsible for paying for that assessment. Some sources suggest that the employer is not only responsible for the initial assessment but all related assessments. Yes, that would be the fancy $10K workup replete with polygraph interrogation and numerous body tissue samples. If you’re a physician who’s been caught in this bankrupting Kafkaesque nightmare, you might want to inquire of your lawyer why they haven’t pursued this. In a blog post, ADA specialist Bill Goren suggests quite strongly that attorneys who don’t utilize ADA to protect physicians’ rights under these circumstances where they are being “regarded as” disabled (here = “impaired”) could be considered to be practicing negligently and themselves subject to legal malpractice! That should tighten some rectal sphincters!
An idea to consider: getting guidance and support from me and similarly situated peers!
I’ve been thinking about the best way to create a safe, affordable space for docs to gather on a weekly basis so that together we can make sense of the PHP-type challenge each is up against. We’d share up-to-the-minute knowledge about the PHP system, its pivotal role in the overall MRTC, and how best to navigate it. And we’d do this with the dual aim of surviving the storm and pooling our knowledge and experience to help each other. And by doing so, we’d be helping light the way for future docs facing the same overwhelming PHP challenges.
It’s a unique opportunity to tap into my fourteen years of experience and study of this disturbing franchise to help other docs make the best decisions so that they can successfully navigate these perilous waters.
If you’re interested in learning more, here’s a link to let me know of your interest and the best way to reach you. Let me know when’s best to talk and at what preferred # [be sure to put that in the message box], and I’ll call you. To ensure safety and confidentiality, and to make sure it’ll fit your needs, I conduct a preliminary interview with all prospective members. I’ll be getting a blurb out on it imminently. But meanwhile, if you know docs who might be interested, be sure to pass along.
Excellent article Kernan! As always appreciate your not-so-tireless efforts. The world is better because you are here.