Senators, US DOJ Scrutinizing Violations of ADA by Medical Boards - Part 2
These Discriminatory ADA Violations Have Severely Harmed Physicians and Prevented Them From Getting Rightful and Needed Care Free of Career Jeopardy
(see here for links to each article in the series)
3 US Senators and US DOJ are actively investigating a growing number of complaints about abuses that have not only worsened physicians’ mental health but jeopardized their very careers for getting help.
This series of articles strive to explain the particular relevance of the ADA from my non-lawyerly perspective to help physicians – especially those harmed by abuses of the ADA – understand its critical relevance.
I urge all physicians harmed by medical boards and PHPs in these ways to avail themselves of this unique opportunity to inform the DOJ of their experience and the harm that resulted due to some manifestation of disregard of the ADA by MLBs and their affiliated PHPs. By discovering the breadth and severity of these violations, these concerned Senators and other legislators will be able to draft legislation that will halt these abuses and hold MLBs and their affiliated PHPs accountable.
This ensuing series of articles highlighting key aspects of the Americans with Disabilities Act aims to focus on two major clusters of potential violations of the ADA by state medical licensing boards (MLBs) and their paired so-called physician health programs (PHPs):
Those in the licensure and credentialing arena that impermissibly select out for persons with a particular disability or disability category whose intent is to subject these individuals to heightened scrutiny; and
Those pertaining to board-ordered medical exams, predominantly of a mental health nature, conducted on the basis of a complaint of suspected occupational impairment due to a mental illness or substance abuse. The submitted concern is often weightily paired with some implication or institutional accusation of being unsafe to practice.
In the latter cluster especially, these allegations have awesome and irreparable career-jeopardizing potential.
Both of these violation categories may contain several ADA-proscribed practices as delineated under Title 1, amongst them (and variably termed): impermissible inquiry; unwarranted scrutiny; invasion of privacy; excessive testing; and surcharge.
Before we dive into these two clusters, I thought it best to first frame this series of ADA-oriented articles with both a disclaimer and a statement of intent.
Disclaimer
Note this very important disclaimer: I’m not a lawyer and this isn’t legal advice.
The reason why I stress this is that my “take” on this or that aspect of a law, here the ADA, may neither be an exactingly correct read of the law (as would be required of a lawyer writing an educational piece on the law) nor actionable upon.1
My writing is a non-lawyer’s attempt to discern, based on my ever-evolving understanding, the fundamental principles and applicability that seem to be the thrust of that law. And when I write about a law that seems to pertain in a set of situations, I write about it from that generalist perspective.
As I've come to appreciate, it’s one thing to “have an idea about what the law says.” (Alas, that’s often imperceptibly blended with what I believe it should say.) It’s another thing entirely to know what it actually says relative to the limited conditions to which it pertains. And it’s still another thing to know what the matrix of enforcement guidances, recent judicial decisions, and even legislative modifications say it operationally really is. And then even further, it’s an entirely different kettle of fish going from such integrated knowledge, no matter how comprehensively studied, to actually applying it to any particular case, given the infinite permutations of individual circumstances.
Why I’m Writing This Series?
To inform harmed physicians that a widely normalized course of behavior by MLBs and PHPs may actually have been multi-institutional gaslighting; that, in reality, this previously unchallenged behavior by state medical licensing boards and their paired PHPs may, in fact, be in explicit violation of the ADA.
And to widely educate physicians as quickly as possible so as to empower these, and yet-to-be-harmed, physicians to fully understand and immediately assert previously unrecognized rights.
As a physician who’s experienced an abundance of unquestionable rights violations and systematically been rendered powerless to challenge them, and one who’s personally interviewed close to a thousand physicians whose careers and livelihoods have been similarly assaulted by the virtual weaponization of the PHP “alleged impairment” assessment system, I’ve devoted an inordinate amount of time trying to understand how such rights can be so irreparably breached with complete impunity.
Over the past decade, I've striven to determine exactly what laws govern these offending entities. Surely there must be some governing principles and failsafe avenues of justice.
“You can be assured that the violator is not going to suddenly fess up and tell you what rights they have violated.”
And here's one of the most important things I've discovered over the years: if you don't know what laws protect your rights and actively assert those rights, you will be at a huge disadvantage in arguing that your rights have been violated. In a situation where there is absent governmental oversight, and absence of internal compliance controls, there is simply no entity that is going to hold the wrongdoers accountable and advocate for your rights. And you can be assured that the violator is not going to suddenly fess up and tell you what rights they have violated.
I’ve chosen to stay hunkered down over the last decade like a cancer researcher, determined to decipher its etiology. Not because I believe I can somehow use these discoveries in my own prolonged twelve-year ordeal. No, I’ve accepted that mine is like a cold-case career homicide.
Like many who’ve been traumatized, I feel it’s my duty to use my cumulative knowledge of the territory to help identify the pathological mechanism so that others may not be subject to such harm.
I’ve served as a sounding board for hundreds of physicians whose stories of helpless anguish and bitterness at the fundamental unfairness, if not cruelty, have compelled me to understand the workings of this growing systemic malignancy.
And it’s not just the wrongfulness and deep hurtfulness of it, I want so desperately to help my colleagues become empowered to protect their rights so that they can have a fulfilling life practicing as the physician they effortfully trained to be so that they could be of service to patients.
I deeply believe that the systematized offenses by these entities are assaultive not only to them but to the profession of medicine as a whole, indifferently (if not sometimes intentionally) harming deeply compassionate, well-trained clinicians while also depriving many thousands of people of their expert care.
And, not confronted and held accountable for their plethora of violations, these offending powers will continue their onslaught with reckless abandon. Integrity in the exercise of power, and honoring the law, rely on active governmental oversight, enforced accountability, clear organizational internal controls, and real access to justice, not just kangaroo courts and the facade of due process. Currently, all of these are seriously lacking. But those who are not affected by these abuses don’t know of these glaring deficiencies nor of the matrix of institutional wrongs.
Worse, I suspect these entities have known they can get away with these diverse violations precisely because of the absence of these restraints. Some actually seem to have capitalized on that. Here’s just one example of that predatory opportunism from a former president of the Federation of State Physician Health Programs (FSPHP), the trade group that represents the philosophy and treatment paradigm of all PHPs:
“One reason for this discrepancy may be physician assistants as a group don’t have the same ability to pay for long-term treatment. “They just don’t have as deep of pockets as the physicians when they get into trouble,” said Warren Pendergast, M.D., medical director of the North Carolina PHP and coauthor of the study. Another contributing factor may be that physicians have more to lose. “For a lot of physicians, if they’re not able to keep their license or get their license back, they don’t have a lot to fall back on,” says Pendergast. “Many of us don’t have other skills. Medicine is really all we’ve done.” The prospect of losing one’s livelihood and identity as a physician is a major motivator.2
Meanwhile both state governments and national medical societies continue to play passively complicit roles in the maintenance of the status quo. Thus my urgency in “finding a cure” is all the more intense.
My “take” on this or that aspect of the law is not intended to be equivalent to a lawyer’s definitive explanation of “what the law says.” It’s a composite blend of what my gathered working understanding is – from reading thoughtful legal commentary; researching the history of the law and legislative intent; studying judicial decisions and, as importantly, dissent; of animated and well-informed discussions with lawyers and medicolegally oriented physicians; and even imagining new applications of a law’s principles to a different context. It’s this last that’s probably my greatest vulnerability, wishing into being the applicability of a law for a given complex circumstance otherwise vulnerable to rights deprivation.
Current case in point: physicians and MLB allegations of impairing – and career-disqualifying – disabilities. The stipulations in one section of the law (here, “Titles”) don't necessarily carry over to other sections. As we'll see, my framing of medical exam parameters for Title 2 MLBs is extrapolated from Title 1 which is applicable to employers and enforced by the EEOC, not by DOJ. It appears that in the drafting of the ADA, governmental entities like MLBs were never envisioned to be undertaking medical exams. Thus, in Title 2, there's sparse reference to any such parameters. So my extrapolation is not what the law literally says because the law is silent on this matter. And yet, DOJ seems to have followed the Title 1 impermissible application inquiries and the medical exam criteria reasoning when it threatened to sue the Louisiana Bar and the Louisiana Supreme Court for asking impermissible discriminatory questions on the Bar exam, affirmative answers to which then led to unwarranted scrutiny and medical exams. I strongly doubt that DOJ can yet conceive how impermissible mandated medical examinations could then devolve into the dystopian privatized medical examiner enterprise that is the current PHP system. Much less, one linked as it is to MLB-mandated $10,000 extended 4-day assessments at MLB and PHP jointly “preferred” facilities, compliance with which is required, objection be damned, under threat of immediate license sanction and being paraded in the public square as an officially designated impaired physician who poses a danger to society.
And so, I may get some aspects of it wrong. That’s why in these complex areas of law, it’s vital to get the guidance of a specialist attorney – in the case of the present consideration of the ADA, one knowledgeable in every aspect of disability law and how best to protect your rights in your given situation.
To Encourage Physicians To Take Action, First by Filing a Complaint with DOJ
My additional reason is that I know via pain-filled story after story over more than a decade the immensity of harm that has resulted from this confluence of forces, and have a unique vantage point on the workings of this interlinked, substantively unfair system. I also have a few hunches about some of the deviousness contributing. I’m deeply aware of how difficult it has been to effect substantial change in addressing these clear rights violations. Case after case of costly shipwrecked litigation is not the answer. And I have been yearning for definitive scrutiny of the system enabling these harms by those with the authority and resources to do so. State governments that are, after all, the authorities that “own” these rights-depriving and public-endangering agencies have shown near total indifference to appeals to investigate.3
And now with Senators Wyden, Merkley, and Booker allying with US DOJ in beginning in earnest this preliminary study, I feel such hopeful promise. And my desire is to help educate my harmed colleagues as quickly as possible on the newly visible avenues of rights protections – contained within an existing law – a law that has been largely unfamiliar to them and even to their counsel, but one that could not only aid them in restoring their own careers but holding the offenders accountable. And with this opportunity, actually contributing to its definitive revision and halting the illegal rights abuse.
To Convey to the Senators and to US DOJ – and the Physician and Legal Community at Large – the Existence of an Interlinked Matrix of Harms, Only Part of Which is ADA-based.
This is perhaps the most pressing urgency that drives this effort. Through my decade-long study, I understand more thoroughly than most how tightly interwoven is the matrix of concurrent violations of a single physician’s rights – by MLBs and their paired PHPs, as well as hospital systems and corporately-owned practices – of multiple federal (and state) laws, and the structural inadequacy of current administrative and civil judicial systems to address this collaboratively woven quilt of violations. In these alleged impairment-related matters, a physician can concurrently experience multiple legally protected rights transgressions beyond those protected under ADA.4
I know how challenging it has been for a group of us studying these hideous breaches for years, to comprehend this veritable matrix of rights violations and recognize the confluence of joint actor violations, aggravated by judicial system inadequacies. But I also know that, like an Emergency Room doc who’s got to grasp and triage the complexity of multiply injured and ill bodily systems occurring all at once in just one patient, the Senators and DOJ need to realize that the problem of MLBs asking ADA-impermissible licensure questions and their PHPs conducting unwarranted and ADA-violative medical exams are just two clusters of violations under one law, and that these are just the visible tip of a much larger iceberg.
It would be understandable that there may be a temptation to implement an expedient solution, especially in such an urgent situation where there is great pain. But, as physicians have learned in years of study and at the bedside, the reflexively administered expedient intervention is not always the wisest course. In fact, it can contribute, through our negligent analysis, to the demise of the patient.
A+ on ADA-compliant Licensure Questions Scorecard. All Honky-Dory Now? Hardly.
You see, even if every MLB got an A+ on the Wible-Palermini “ADA-compliant Licensure Questions Scorecard,” the derailment of physicians’ careers in other ADA-violative ways would continue with nary a hesitation. Here, entirely outside of the impermissible licensure questions:
hostile referrals for mental FFDEs done by exclusively contracted PHPs that have regulatorily and cognitively captured the MLB system;
continued utilization of SAMHSA-prohibited false-positive drug testing;
disregard of requisite individualized case analysis by both MLBs and PHPs;
pursuing invasive medical exams on false but incontestable allegations of impairment or “unsafe practice;”
trumped-up diagnoses and unsupportable recommendations for treatment and monitoring by PHPs and their private “preferred” affiliates, made virtually unchallengeable;
denial of access to one's medical record that formed the basis for the justification of referral to wholly unwarranted extended assessment;
imposing the cost burden for this extensive testing onto the allegedly impaired physician;
denial of access to independent medical examination;
forced treatment in costly privatized systems for “rehabilitating the impaired physician;”
utilization of non-standard of care, non-peer reviewed modalities of extended assessment, including utilization of interrogation via polygraph examination;
blatant disregard for requisite maintenance of confidentiality of utmost protected personal health information;
willful failure of requisite oversight by state government and by appointed regulatory boards and boards of directors of associated PHP nonprofits;
and near-total denial of due process throughout the entire cascade.
All will continue, as will nearly undetectable career-lethal reprisal for any physician daring to raise these issues.
And all of these are just limited to the ADA.
Physicians: Let DOJ Know of ADA Violations by MLBs and PHPs That Have Affected You.
Impermissible licensure questions? Unwarranted compulsory medical “fitness for duty” exams? Lack of individualized case analysis or reasonable accommodation? Violations of confidentiality of protected health information obtained from MLB investigation or PHP medical exam? Be sure to follow the whole article series covering these. DOJ wants to hear from you. And 3 deeply concerned Senators want to help.
I hope by writing these pieces I will help my colleagues “plant their flag” of attestation of ADA violations and harms with DOJ. And I earnestly hope that DOJ will be able to devote the time-intensive efforts to deciphering this complex tapestry of violations; though they may find that some of them are outside of their designated ADA jurisdictional purview and are enforced by EEOC. Nevertheless, as a result of their study, DOJ would be more equipped to have a framework for understanding the myriad and often concealed ways ADA might be being violated by MLBs and PHPs and would be more fully prepared to conduct a thorough investigation of the offending parties. They may also be able to convey to the concerned Senators the urgent need for a multidisciplinary commission to comprehensively examine the tapestry of these cross-statutory and multi-party violations and design informed legislation to enforce needed protections.
There is no doubt that highest level governmental intervention is needed. And I am deeply appreciative of the Senators’ and DOJ’s efforts.
The ADA Violations Cannot Continue
Because three things are clear: simply from a human rights perspective, the harms cannot continue as they are so fundamentally unfair, irreparable, and psychologically injurious; the very fabric of the profession of medicine (and dare I say trust in reliance on the fairness of government) will be further torn, and invaluable, highly skilled medical resources recklessly wasted; and our patients – after all, our society as a whole – will be deprived of receiving the highly trained and compassionate care they so desperately need.
With that larger picture and its disclaimers understood, we’ll begin our exploration of the ADA and MLBs’ array of potential violations, and why this particular law plays such a pivotal role in enabling physicians to get the mental health care they need when they need it – without jeopardy to their careers or their psychological, reputational and financial wellbeing.
I’ve written previously that jumping into court on creative legal perspectives I’ve shared here is less likely to give you the vindication and remedy you hope than to have you leave court in an orange jumpsuit.
In “SUBSTANCE-IMPAIRED PHYSICIANS: TREATING DOCTORS AND PROTECTING PATIENTS” By Linda Wasmer Andrews. JOURNAL OF MEDICAL LICENSURE AND DISCIPLINE. vol 91, Number 4, 2005. p. 8. The discrepancy Dr. Pendergast is referring to is the reported “outcome” of physician assistants compared to physicians. The validity of the data supporting the assertion is highly dubious on numerous grounds, not least of which is the organization reporting this was documented by the NC Auditor to have deprived all 1,140 physicians it had evaluated over the preceding decade of due process.
Why, you might reasonably ask. Despite some states’ governors and attorneys general asserting that they are not empowered to oversee these agencies, no matter how egregious the harms, my hunch is that they know that doing the right thing by investigating risks opening up a giant – and costly – can of worms. What do you do if your own agency to which you’ve given great latitude has been breaking the law and destroying physicians’ careers and then also, by doing so, actually jeopardizing patient care, i.e. the safety of the public that these very agencies professed to protect?
Well, you just do as North Carolina did in response to the state auditor’s finding in 2014 that the NC PHP had violated the due process rights of all 1,140 physicians it had comprehensively psychiatrically evaluated over the prior decade by refusing them access to their medical examination record or ability to access independent medical examination. At that, conducting such medical exams under the sham identity of peer review. What did the NC state government do? What they did is nothing. Absolutely nothing. 1140 physicians whose careers were jeopardized if not destroyed. And the actual number of evaluations it conducted during that period is likely twice what it reported to the state auditor, based on publicly available information it itself reported to NCMB regarding the number of diagnostic psychiatric evaluations it conducts yearly.
Wait, I take that back. They did do something. They went behind the scenes and changed the law pertaining to NC PHP doing peer review and gave them new powers, as an unlicensed medical corporation, to conduct the same invasive psychiatric evaluations. And they did so quite evasively, concealing the proposed law modification within a fire redistricting bill, thus obstructing public comment. So much for transparency in government. Not one effort has been made to mitigate the harms, likely including one or more physicians who may have died by suicide as a result of these rights violations.
For example: Privacy and confidentiality of PHI; HIPAA-guaranteed right to medical record; civil rights; malpractice in the conduct of medical exams; unfair and deceitful practices; prohibition of anticompetitive behavior; employment contract and by-laws violation; whistleblower retaliation; protection of resident and medical student rights; and peer review, and others. It's overwhelming when two or more violations are paired. The burden of litigation is greatly more complex and costly, if you can even find a specialist who addresses that particular violation of law and whose representation you can afford.
I iterate these here only to caution that while ADA is a critically important law applicable to MLBs and PHPs in these matters, we should not see it as the panacea. However, for the immediate purpose of enabling physicians to get mental health care and prevent MLBs and PHPs from harmful discriminatory, predatory, and extortionary behavior, examining ADA violations in this systematic comprehensive manner is a critically important first step.
Consider also the unfettered access to CURES (in CA) the Board has claimed despite the guardrails found in the Lewis v MBC. How could the board argue that their unimpeded access to such databases don't also constitute a form of discrimination that "could potentially deter individuals with mental health disabilities from seeking licensure, thereby violating Title II"? If I know at any time the Board could look at the medications I'm prescribed isn't that the same as checking a box when applying for a license?
You might be familiar with this resource, considering the background behind it, but on the off-chance that it's not on your digital radar, I am copying and pasting some info below from a blog called the Digital Nomad Physician (https://www.digitalnomadphysician.com/), by Dr. Mo, titled "Getting Legal Help For Your Practice". Please note these are all his recommendations - I personally do not have any experience with any of these law firms, though I do plan on reaching out to one or more of them myself. Also, there's absolutely no benefit or hidden gain for me in sharing this info - it's purely because I recognize that one of the most common questions many docs ask is where to find a good lawyer, and after reading Dr. Mo's posts for over two years now, I trust his integrity & judgment. I hope this info is helpful, but if this isn't the right space to share it, please feel free to delete my comment and know that I will not take offense. Thank you for the work you do - out of everything on my Substack feed, I look forward to reading your newsletters the most!
>>>
Getting Legal Help for Your Practice (https://www.digitalnomadphysician.com/legal-help-for-your-practice/)
Finding a good attorney is just like finding a good physician. Some of them are great, and they may not be great every day of the week. So, to start your search, it’s best to start with word of mouth.
I have worked directly or indirectly with the following attorneys, who are highly recommended. Some of them may not be able to help you in your particular state, but most will be able to offer you the right guidance.
1. Cohen Healthcare Law Group (https://cohenhealthcarelaw.com/)
Michael Cohen has some great content online and publishes occasional YouTube videos, which may answer many of your general questions.
If you are looking for a healthcare law expert (https://cohenhealthcarelaw.com/healthcare-law/), then their firm is highly recommended.
My coaching clients tell me that the amount of information they give you is incredible. It’s a great idea to reach out to them, see what advice they can offer you, and get some idea about pricing.
If you’re looking for an attorney for your medical practice, this is where I would start.
2. Leeds Law (https://www.leedslaw.us/)
Luanne Leeds gives talks to various DPC (https://www.digitalnomadphysician.com/direct-primary-care-model/) enthusiasts. You can find some of her YT content online (https://youtu.be/DZM_tvBFSC8).
Leeds Law is based out of KS, but they help physicians in various states. Though it’s always best to do that free initial consult to ensure you feel comfortable with an attorney’s familiarity with your state and situation.
3. ProSCALE Legal (https://www.proscalelegal.com/)
I often recommend Jay to my physician clients when they are building a coaching practice. For such hybrid practices, separating the medical and coaching arms is important to avoid running afoul with the state medical boards.
If you need legal help for your practice, Jay and his team are a good resource, especially when navigating the nuances of appropriate marketing.
4. Medical Justice (https://medicaljustice.com/)
Dr. Segal and his team are great at helping you accumulate a solid online profile with online reviews. But they also help physicians facing a lawsuit or another online reputation crisis.
I’ve written about Medical Justice before and use them for my various businesses when I need legal help.
Below are some related articles that you might find interesting:
Whistleblower Revenge in Healthcare (https://www.digitalnomadphysician.com/whistleblower-revenge-in-healthcare/)
Medical Board Investigation Help (https://www.digitalnomadphysician.com/medical-board-investigation-help/)
Free Legal Advice for Medical Professionals (https://www.digitalnomadphysician.com/free-legal-advice-for-medical-professionals/)
California Medical Board Hearing (https://www.digitalnomadphysician.com/california-medical-board-hearing/)
Applying for Second Non-lucrative Visa Renewal, Spain (https://www.digitalnomadphysician.com/second-non-lucrative-visa-renewal-spain/)
-Dr. Mo (https://www.digitalnomadphysician.com/mohammad-ashori-md/)
5/22/23 2:36 PM