Physician Mental Health "Safe Harbor" Laws
A Deeper Dive
You may have read my previous post which highlighted the new Delaware “Safe Harbor” law. Because it appears that this is a recent and disturbing trend among several states, this and a few more pieces will do a deeper dive in these murky waters.
This is part 2 of a series on specially crafted “safe harbors” for physicians safely getting needed mental health care.
A CBS story on Delaware’s rollout of its Safe Harbor law quoted physician leaders touting what a wonderful initiative this is.
My perception: Delaware’s physicians’ mental health “Safe Harbor” law not only jeopardizes physicians, it compromises therapists and gaslights the medical community and the public.
Here, I thought it’d be good to drill down on the bait-and-switch law using the CBS reporting news piece itself as an instructive tool. It’s a two-fer: dissecting the sugar-coated PR-dressed-as-journalism piece to more closely study the poisonous law.
Why This Deeper Dive?
I was going to follow that prior Un-Safe Delaware Harbor article with a light-hearted, facetious piece about how a new CPR-sponsored law we paid lobbyists big bucks for deputizes the Safe Harbor therapists to snag impaired legislators on their first trusting mental health visit and carts them off to Kansas for their famed 4-day $10,000 cash-on-the-barrel interrogation. (Now Delaware, maybe that’s the business you ought to get into!)
But when I re-read the news article that originally alerted me to Delaware’s version, I felt I just had to drill down on it as there’s more here than initially meets the eye.
A caveat: This is an OpEd for which I solely am responsible. I must offer a lawyer-inspired caveat pertaining to this and all other Physician Interrupted opinion pieces. I am not a lawyer and nothing I’ve written here is to be construed as my offering legal advice or knowing diddly squat about the law.1 In the event that I have written anything here that is factually incorrect, I welcome your bringing it to my attention so that I may promptly correct it.
Quick Read: The Down and Dirty in Under 3 Minutes
Here's the skinny for the time-pressed or long-form intolerant.
Deceptive PR Lures Docs Into What Is Clearly Not a ‘Safe Harbor’
What's remarkable is not just that this law virtually comprises a state-run sting operation aimed at one class of professionals. It’s also that the PR accompanying it makes it sound so wonderful and creates an unwarranted sense of program trustworthiness in its encouragement for physicians to safely seek mental health care.
So, in this piece we do a deeper dive into that CBS news piece that lacks any actual examination of the law and seems comprised of nothing but PR. Examining it from this slant, we look at why such PR is dangerously misleading and use that piece to highlight exactly why the law itself is so dangerously flawed.
What the CBS piece and similar promo material overlook:
Therapists Become Psychological Gestapo
It essentially contaminates the entire mental health field, turning it into a Gestapo, and makes it unsafe for any physician to seek mental health care, no matter how innocuous their condition may be.
Docs Can Be Diagnostically Stamped IMPAIRED and Their Careers Vaporized With No Means To Object
It turns therapists into forensic clinicians (for which they lack the training) and enables the assignment of a nearly incontestable clinical diagnosis and assessment of impairment without affording the physician time to object or seek independent opinion. It has the high likelihood of immediately harmful consequences. It then thrusts these allegedly impairned physicians into another forensic environment, also lacking in requisite forensic training, where their denial of due process will intensify and their careers will be thrust into the ravenous maw of the MRTC impairment machine.
The ‘Safe Harbor’ Law Conceals The State’s Failure of the FTC-Advised Oversight of Its Medical Board
The law also represents a wholesale failure of the state to oversee its medical board’s and PHP’s operations which pattern of conduct gives strong evidence – not unlike other medical boards and PHPs – of violating various federal laws protecting physicians’ rights, notably amongst them the Americans with Disabilities Act (ADA).
Call In The Feds?
I believe that it poses such potential jeopardy to all 1,750 physicians licensed in Delaware that none should feel safe in seeking any sort of mental health care from its "safe harbor" state agent therapists. I believe it's also so dangerously flawed and potentially violative of federal law if not also constitutional rights that it compels federal investigation to consider an injunction to halt any further damage it may cause.
Like many topics in this physician rights arena, the issues can be complex and, as they’re not in most people’s domain of familiarity, they require some explanation and commentary along the way. Thus the longish multi-part read. I’m still toying with ways to convey ‘just the facts, ma’am’ (and this skinny is one). But bulleted listicles and executive summaries deprive the reader of getting a sufficiently full understanding of the issue at hand. And if you yourself are in the crosshairs or are hoping to take a more activist approach toward addressing these issues, you need the more nuanced series of essays.
Jump off here if this suffices or if perhaps this is just not your cup of tea.
Delaware’s “Physicians’ Safe Harbor” Recap
So, to catch you up …
This is important legislation all docs ought to know about - not just the tiny contingent in the sleepy state of Delaware. States (this is the fourth I’m aware of) are increasingly announcing “Safe Harbor" laws, giving the appearance that they're finally making it safe for docs to get mental health and potentially problematic substance use care.
Delaware (which scored an “F” on the excellent Wible-Palermini ‘ADA-impermissible question violation’ scale) creates this “Safe Harbor” law that proudly proclaims that it makes it safe for docs to get mental health care for whatever’s plaguing them. And a local CBS reporter writes glowing things about it, quoting not only the governor but a chief wellness officer at a saintly-sounding hospital who thinks it’s such a wonderful thing. And she probably really does, simply because she is completely naïve to the "impairment" vernacular and the devious strategies that are being used to funnel and then ensnare lucrative physician patients in the PHP self-referential “preferred” network.
What Were the Legislators and Governor Thinking?
Presumably because legislators are hearing stories that docs are fearful of adverse impact on their licenses and thus hospital staff privileges (i.e. “credentialing”) if they even just acknowledge getting mental health help, Delaware newly creates a special “safe zone” for docs – note this: specifically docs – to get mental health help without the board or PHP knowing one thing about it.
(It would be entirely fair for you to ask at this juncture “hmmm, why would docs need special protection from their boards when no other licensed professional does?”)
The governor and legislators don’t seem to understand why the docs are so fearful.
While they don’t seem to understand why the docs are so fearful - no other licensed professionals are (isn’t that sort of curious?) – they have some sense that they need to do something to protect physicians from the medical board and PHP. This would suggest that neither the governor nor the legislature really has any idea of how harmful and potentially illegal the non-overseen board and its compulsory PHP “fitness for duty” evaluations, referrals and lengthy treatment process can be. Lacking that, I’m imagining they say
“What the heck, whatever they’re worried about, let’s give the docs an added level of protection. We know it's been tough and you're unsung heroes and we can't afford you off’ing yourselves in combat-weary, self-medicated despair just because of the stigma of getting mental health help and because the meanie boards and PHPs get a little personal. No siree, we don’t want that to happen.”
So the new Safe Harbor law tells docs, yahoo! they can now get all the mental health help they need, completely safely and privately.
The law doesn’t adequately explain – and it would appear the governor and legislature don’t want to know – why the board’s simple knowledge of a doc’s mental health issues or just the fact that they’re going for help could actually create such jeopardy, just that it apparently does. This, as we’ll see, is not just an expedient gloss-over but a key part of the problem.
It’s possible many naive legislators may actually think they’re creating bona fide safe zones in which docs can open up without fear of it somehow adversely affecting their licenses and careers. So, with this novel legislation freeing them of that risk of being outed for seeking help, help that every other citizen can obtain without judgment, their worries about harm coming to their careers from their licensing authorities are - Ta-DAH! - completely over.
But the law added a tiny exception to the meaning of “Safe Harbor,” which we will get to in a moment.
Now, if I were a legislator and somebody did a snow job on me like this, getting me to vote for a bill that was sold to me as “safe” and caring, and I then discover that’s b.s. and it’s not only not safe but irreparably harmful and likely in violation of one or more federal laws, violation of which could cost the state civil fines if not loss of funding, I suspect I’d be a tad enraged. And I’d want to get to the bottom of how I and colleagues got double-crossed.
Let’s Explore the Deceitful Law Via the Propaganda Piece …
The CBS Headlining Announcement “Doctors in Delaware have new protections….”
A CBS news article on the law’s rollout is glowingly celebratory but doesn’t seem to understand the implications of its mandatory reporting component.2 Without a deeper exploration, the article could unwittingly (at least I presume it’s unwitting) serve as a source of misinformation about the law’s Safe Harbor exception, encouraging docs to avail themselves of confidential mental health services that under new directives may actually result in the physician client being reported to the board - by the confidentiality-assuring therapist!
I thought it’d be instructive to do a detailed walk-through of key parts of the CBS article so you can see, point-by-point, each disinformation element. This sort of propaganda seems to be rife among the MRTC players.
WILMINGTON, Del. (CBS) -- Doctors in Delaware have new protections if they seek mental health treatments. This new legislation aims to allow doctors to get help for mental health conditions, without being stigmatized or putting their job in jeopardy.
First, while it seems innocent enough, as you will see below, these aren’t actually protections at all.
Second, federal (and likely state) legislation already exists to “protect” doctors and all other citizens in their seeking medical and mental health care. But boards and PHPs are routinely abusing these laws in multiple ways, for one, by asking ADA-impermissible questions on licensing applications and then forcing applicants into state-contracted PHP “screenings.” And then, from these due process-deprived diagnostic interviews, they may be sent – on board order simply because the PHP “recommended it” – to one of that PHP’s specially selected, cash-on-the-barrel four-day “preferred” evaluation programs “specializing in physician impairment” which may then infallibly diagnose an array of previously undiagnosed major impairments and declare the need for long-term treatment at one of their special facilities, followed by multi-year “monitoring,” just to ensure that they’re “safe to return to practice.”
And states are willfully neglecting to oversee and hold these boards and PHPs and their specially selected “preferred programs” accountable, and to monitor them on a continuous basis to ensure that they are abiding fully with federal law and not abusing physicians’ rights.
Delaware Gov. John Carney signed a bill to support doctors who get mental health treatment. "It sends a message to our physicians and health care providers that we care about them," Carney said.
In fact, Gov. Carney, it sends the very opposite message. We’re going to let you believe you can get help safely, but once you go for help, sorry buster, it’s up to us to determine whether you have a problem. And if so, you’re going straight to the PHP or the board, Do Not Pass Go and Do Not Return To Practice.
In many states, to get a medical license, doctors have to disclose if they're being treated for mental health conditions, which can raise a red flag, putting the physician's license at risk. This will no longer happen in Delaware.
Well, isn’t that quite the revelation! In fact, the real red flag is that the Delaware Medical Board’s invasive inquiries may have been – perhaps for the last thirty years or so – in explicit violation of the ADA by demanding responses to ADA-impermissible questions and may have caused irreparable harm. And it’s possible it may still be making such impermissible inquiries which responses wrongfully order physicians to submit to unwarranted invasive PHP psychiatric examinations, themselves likely in violation of ADA’s strict guidelines on permissible focused medical examinations.3
And yes, many state medical boards are similarly making impermissible inquiries and then effectively capturing physicians – quite literally – and funneling them into their exclusively contracted PHPs with their own downstream “preferred” referral network.
Might there be a problem with such a system?
That other states have been doing the same thing doesn’t make it legal. In fact, it makes one wonder whether there might be tacit agreement amongst them.4
(If you'd like to explore why such invasive inquiries are illegal and see a sampling of representative cases, see Jacobs, and LA Bar case references in footnotes.5)
"Now, they can feel safe that they can get the help they need without being mandatorily reported unless there's impairment," Dr. Heather Farley with ChristianaCare said. "So we're still maintaining that component of patient safety."
Let's unpack that.
"Now, they can feel safe . . . unless there's impairment"
So I, a physician, can feel safe going to a licensed mental health therapist, a professional bound to patient beneficence and confidentiality, without being mandatorily reported because … why?
Because I don’t have . . . “an impairment?”
Which is conversely equivalent to saying that, as a rule, people who see therapists risk getting turned in to some authority somewhere on the basis of being involuntarily committable if they have an impairment. But obviously, that can’t be valid because it’s therapists very job to treat people who come in with troubling diagnoses that may be significantly impacting them, i.e. causing impairment in some domain of function. I go to a therapist because my condition is having a significant impact on my life, i.e. impairing me on some way. And yet, here is the state of Delaware saying that if you’re impaired and you go to a therapist for help, you’ll be reported to the state, and could lose not just your job but your career, and not just in Delaware but worldwide, forever. And putting this forward as a “safe harbor” law?
The only time a therapist might be permitted to break the safe confines of their sworn confidentiality is if their patient is so impaired that they cannot care for themselves or might be an immediate threat to themselves or to explicitly named others.6 Therefore, it's a very rare phenomenon to breach confidentiality and civil liberty to act so extremely in response to a client's impairment. And even then, a therapist usually goes through extraordinary measures to avoid such a breach.
But that only applies to people, you know, non-physicians.
So physicians should be concerned because, if they have “an impairment,” they not only face the risk of that therapist breaching those professional norms of confidentiality; with this law, there is a certainty that those sacrosanct norms upon which the profession is based will be breached. Why? Because the state made a unilateral decision – with apparently no supporting data to warrant such a single class breach – that it could demand, under its police powers, that therapists must violate their professional norms in the case of physicians – mind you, not judges, not lawyers, not politicans – whom they have determined to be “impaired” and to report them to their medical licensing board.
What exactly is an “impairment?”
There is no diagnosis in DSM 5 of “impairment.” There is no special cluster of diagnoses in a chapter entitled “The Impairments.”
The only thing that might relate to impairment is the estimated severity of a clinician’s tentative working diagnosis of a patient’s functioning. (And, by the way, most mental health clinicians’ diagnoses remain tentative for the first month of meetings simply because a person’s psychological bundle can be so complex to sort out.) That “assessment of severity” was previously reported on a separate “axis” of the now defunct five-part multi-axial classification scheme. And even there, very few clinicians ever assigned such ratings, for numerous reasons, one being that this Axis 5 Global Assessment of Function (GAF) score was, overall, clinically unhelpful. It was recently replaced with diagnosis-specific assessments of impairment that were then given qualitative degree labels, e.g. ranging from “none” and “mild,” to “major” or “severe.” And even these have necessarily large margins of error given their being based on qualitative diagnostic and severity criteria to begin with.
The everyday working understanding amongst clinicians regarding confidentiality-and-civil-liberty-breaching impairment is imminent danger to self or to specifically identified others.
Further, outside of the capacity to care for self or risk to others, the assessment of the degree of impairment has never been a central focus of the therapeutic encounter. Its primary use was envisioned to perhaps be a marker for relative improvement or decline in treatment; it was also to help the therapist recognize the challenging treatment task before them so they could set realistic targets for improvement without frustrating the client or themselves.
Where on this continuum of “impairment” would you have a therapist breach confidentiality and a patient’s civil liberties and betray their oath of beneficence to report their physician-patient to the medical board?
What would you suggest if the assessed impairment, even if valid, had no discernible impact on professional function or that one didn’t know whether it did? Would you still advise reporting?
“Doctors say this is especially needed now, more than two years into the COVID pandemic when many doctors are burned out, suffering with high rates of depression, anxiety, and suicide.”
What’s really needed now is genuinely knowledgeable, compassionate, confidential – and ironclad trustworthy – mental health support. A special designed-for-doctors Safe Harbor giving the false appearance of skirting the board’s scrutiny? No. Rounding up docs with symptoms suggestive of impairment based upon a contrived “physician impairment epidemic” panic with utterly no basis in fact so you can feed them to the voracious, referral-hungry insider-dealing PHP system? No.
"There's a difference between having a condition and being impaired," Farley said.
Yes, indeed there is Dr. Farley. So, do you know the process of how impairment due to a “condition” (i.e. a diagnosis) is assessed? Do you know whether such an impairment assessment paradigm is consistently applied across all mental health disciplines and what its inter-rater reliability is? I would be quite surprised if you did, as I don’t know of one study that has specifically examined inter-rater reliability of assessed impairment, as the very concept of impairment assessment in this unique regard is so foreign and its utility so suspect. And this doesn’t even consider the questionable reliability of the ever-changing diagnostic and accompanying impairment severity criteria.
And as a former mental health clinician, I can tell you for a fact that in my clinician circle, impairment severity was only referenced in general terms when presenting or referring a patient. Further, in peer supervision, you’d often see that one clinician’s nit-picky by-the-book diagnostic determination and GAF assessment is another clinician’s “meh, that’s nothing.”7
More concerning Dr. Farley, I suspect you may not know what happens AFTER a doc is referred to the board and then to its exclusively state-contracted PHP. Very few people do. It is a legal entanglement from which it is virtually impossible for the physician to extract him or herself, even with top-notch legal help and incontrovertible independent expert assessment. You’re marked, and marred, for life. Even if you somehow miraculously manage to extract yourself.
What Are Physicians’ Rights If Wrongfully Diagnosed by the State-contracted PHP and Its Deputized Therapist Designates? NONE.
Do you know what rights a doc would have if a therapist made an inappropriate “impaired” referral? None. What the law essentially says is “impaired or even potentially impaired? Mandatory report to Board and then to the PHP” for its sham medical adjudication and into its funnel, the no-return tunnel, officially, publicly and forever stamped as “suspected defective,” even if, after a tens-of-thousands-of-dollars extraction, you’re “cleared.”
The consequences of this gross violation of rights are grave, irreversible, and irreparably harmful. And I see no clear pathway in this law for a physician to pursue those rights.
Farley is the Chief Wellness Officer at ChristianaCare. She advocated for the new legislation for doctors.
"It's now OK for them to not be OK and feel confident they can seek help without having negative ramifications for their license," Farley said.
Oh, Honey, Get Help. It’s Okay To “Not Be Okay” . . .
. . . Unless You’re Actually “Not Okay.”
Sorry Dr. Farley, but this is just flat-out happy talk.
And once we determine you’re “not okay,” you’re going to discover a whole new forever dimension of “Not Okay.”
What this is really saying is that it’s safe to “not be okay” . . . unless you’re actually “not okay.” In which case it’s really NOT safe to “not be okay.” Because “not okay” = illness = some clinician’s qualitative first-pass determination of a diagnosis which may not be valid and is yet paired with an invalid “impairment assessment.” And the doc’s right to disagree and to obtain a second opinion is entirely deprived while she or he is now thrust into the further due process-deprived maw of the entirely non-overseen and non-accountable exclusively contracted insider-referral ADA- and 42 CFR Part 2-violative PHP system.
The CBS article closes with
Among the groups supporting the new legislation include the Delaware Healthcare Association and the Medical Society.
As bad as all of the preceding is, maybe this is what nearly blew out my carotids. Have any of these white-coated stethoscope-bearing people actually read the legislation? Have they taken the effort to really examine it and not just reactively applaud something they’ve been told is good for physicians? Do they understand what it’s really saying? The Medical Society in particular should’ve been the fail-safe that would oppose legislation that jeopardized physicians’ rights.
Why aren’t medical societies and physicians as a whole not up in arms?
In an upcoming piece, we’ll look at the ways Delaware – and other states – while thoroughly failing to exercise requisite oversight, have invoked their supremeness to usurp federal law and claim immunity from suit, and why you might wish to strike Delaware from your "oh, I so want to be a Delaware doctor" list. (There are less painful ways to get a Delaware Punch.)
Meanwhile docs, don’t be misled by the CBS-faciliated promo piece or any of its variants:
“Attractive Safe Harbor – Just For Docs! Moorings Immediately Available”
Stay clear of state-sponsored inlets with welcoming banners that encourage the weary physician to drop anchor in their “Safe Harbor.” It's mined. And once you enter, even your GPS transponder will go silent and you may never sail the open seas again.
In fact, let me elaborate. As I am not a lawyer, nothing I write or say that suggests a possible meaning of, or even refers to, any law; court decision; civil and human rights; the constitution; due process; congressional hearings and the intent of the law; administrative agencies; state or corporate governance; corruption; civil and criminal violations; or anything that intersects in any way with the judicial system or even the concept of jurisprudence itself, no matter how imprudently delivered, should be considered worthy of serious consideration as such utterances are the exclusive domain of Bar-stamped JDs. Despite my occasional use of fancy Latin words and phrases like ‘arguendo,’ ‘nolo contendere’, and ‘ultra vires,’ do not be deceived. None of this stream of plebian verbiage coming from me, an opinionated non-JD, should ever be considered as valid argument or suggestion of legal strategy, much less acted upon in any consequential manner.
It made me wonder – do journalists research their pieces? Or do they just print what they’re told by a “knowledgeable authority” without probing beyond the simple announcement of the event and the glossy PR they’re given?
All state medical boards are members of a national organization - a trade group really - that is fully capable of not only advising their member medical boards of the requirements to comply with federal law, but capable of disciplining them for non-adherence. One should wonder then, why hasn’t FSMB taken such disciplinary action? Could its failure to do so be seen as complicity?
Track down THE MEDICAL SOCIETY OF NEW JERSEY, Plaintiff, v. FRED M. JACOBS, M.D., J.D., and the NEW JERSEY STATE BOARD OF MEDICAL EXAMINERS, Defendants. Case No.: 93-3670 (WGB). This case goes all the way back to ~ 1990, soon after the ADA became law and when medical societies actually had a genuine interest in defending physicians’ rights and not being patsies to state agencies violating federal law which the NJ Medical Board was clearly doing with its ADA-impermissible questions.
See SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE LOUISIANA SUPREME COURT UNDER THE AMERICANS WITH DISABILITIES ACT. This settlement agreement is not just a superb overview of the essence of the ADA; it is a fine example of the excellence and crispness of DOJ’s prosecutorial writing. You do not want to be on the receiving end of one of these.
Generally, there are two other confidentiality-breach exceptions – child exploitation or harm, and senior abuse - that I only mention for completeness.
The main point here is this. The legislative decision to mandate a breach of therapist confidentiality is a very serious matter with far-reaching implications. So too is the granting of power to certain clinical professionals to restrict a person’s civil liberties via involuntary detention in a mental hospital. This latter is an immense power the mental health clinician is granted and it must be applied with great discretion. You don’t just check off symptoms, tally them up and say “that’s it. I’m turning you in.” The combination of both the breakage of time-honored confidentiality via state-mandated reporting and the resultant virtually involuntary civil commitment with both immediate and long-range irreparable career consequences, both being executed with utterly no liability consequences or independent oversight, is chilling.
GAF = Global Assessment of Functioning.
When I was ensnared by the Washington State PHP my attorney asks the director, Lyn Hankes, if he would consider jail as a safe harbor. Dr. Hankes who is a former recovering drug addict, replied, "yes".