US Justice Dept Puts Indiana Nursing Board on a Monitoring Program

Board and Its Professional Assistance Program ("ISNAP") Told to Comply With Federal Law Within 7 Days ... Or Else

(Updated: FN 10 now includes the direct link to the USDOJ letter to IN BON)

The Indiana State Board of Nursing and its PHP equivalent, the curiously named “ISNAP” program, were informed rather straightforwardly by the US Department of Justice (DOJ) a little more than a month ago that they were in serious violation of the Americans with Disabilities Act (ADA). This determination applied as well to their exclusively contracted nurse professional assistance program (essentially a PHP type assessment, treatment and monitoring program) and all its service contractors in their nurse rehabilitation treatment complex.¹

Abbreviations Used in Article.

They were informed that they were to make corrections to return to compliance within seven days … or else face the prosecutorial storm that DOJ would initiate if they refused to comply.²

ISNAP … May Snap

Now, this is a seminal case as it’s one that’s entered the medical licensing board arena. And it comes along as part of a series of recent investigations and statements of findings that the Disability Rights Section of the DOJ, the ADA enforcement branch in its Civil Rights Division, has undertaken and issued in the past several years.

(Filing a US DOJ Civil Rights Complaint re ADA Violation - see this footnote.³ )

In essence, this is about a state governmental entity, here the IN BON, holding the position that they have the right to determine who gets to enter into their ‘professional assistance program’ and who they’ve supremely determined via their non-articulated medical reasoning should be barred regardless of prevailing law.⁴ Amongst those who were barred from entry, a necessary prerequisite to regaining their license, were those nurses who had become addicted to narcotics and who were in recovery but whose recovery and continued abstinence required the use of a medication to help deter relapse. Two of the pharmacotherapies that have been found most helpful for such a recovery are Methadone and Suboxone.⁵ These types of meds essentially block the craving for the opioid that the re-wired substance-dependent nervous system demands. (I think it’s fair to say that few if any people wanted to become addicted or had any idea of how it hijacks the brain’s reward system.) That deeply wired craving is the key reason for repeat usage. It’s been shown repeatedly in well-accepted studies that when you block that craving, substance-use relapse drops dramatically and treatment-motivated people are able to resume productive lives. And conversely, when you obstruct use of that ‘anti-narcotic’ medication or prematurely discontinue its use, relapse rates go right back up.

DOJ Protects Right To Medically Appropriate Recovery

In an earlier case, DOJ got involved in a dispute involving an inmate’s right to continue medication-assisted treatment for heroin or other narcotic addiction when sent to prison. The prison had essentially taken the position “no way - you got hooked, you’ve got to come off on your own. We don’t pamper prisoners. If you don’t do well off your MAT, too bad, it’s not our problem. We can’t cater to every whim of a prisoner. (Besides [you can almost hear the internal dialog], you deserve to suffer, you crummy addict. If you die in your withdrawal, it’s just one more open cell and one less mouth to feed. Good riddance.”⁶)

A non-profit group took up the cause and argued that depriving these recovering addicts of prescribed treatment that is known to cut their usage of illegal narcotics and to serve as the basis for their sustained recovery is not just cruel punishment. They argued it was against the law. Specifically, the ADA. They argued that, as addiction is a recognized disability under ADA while one is seeking treatment for that addiction and refraining from illegal drugs, depriving a person of access to treatment is akin to discriminating against someone who has any other disability that needs accommodations in order to perform their job. It’s taking a class of individuals with a certain disability, and forcing them to undergo a burdensome (and dangerous) medication-free treatment process and to suffer its consequences where others with disabilities are protected from such burden.

And indeed, the DOJ agreed with the reasoning. You can’t discriminate against a group of individuals who have a certain disability by imposing burdens on them that are not the same burdens imposed on others. You don’t make a diabetic go without insulin to prove their capability to do their jobs, do you?⁷

So DOJ steps in and twists their arm and the prison system says “so, okay then, I guess we need to find a way to let them continue their medically prescribed meds.”

And then about a half year ago, a state court system (PA) with the full approval of that state’s supreme court, was telling newly charged people that they couldn’t have access to that state’s rehabilitation program, presumably a key element of their pathway to reentry into the workforce once their punishment is served, if they were taking Suboxone or similar ‘anti-narcotic’ meds for treatment of their OUD.⁸

DOJ says to the PA court system and its governing authority, the PA Supreme Court “sorry guys, you can’t do that. You’re running a recovery program which is a public access program, and you’re setting conditions of participation that serve the effect of discriminating against a specific group of people with a disability who require a medication for their recovery to be addiction-free and productive members of society. It’s arbitrarily discriminatory against this group of people with this recognized disability under the ADA. It’s creating additional burdens on them and, as such, it is by its nature discriminatory to that class of individuals who have that ADA-covered disability.

Now, as seems to be the pattern for some of these comfortably infallible state entities, they seem to have given some pushback to DOJ, essentially saying “we know what we’re doing; we don’t believe that approach is useful. It’s our program; we’re the state supreme legal authority and you can’t tell us what to do.”

DOJ says to the effect “perhaps you didn’t fully understand what we said. You can certainly choose not to agree with our reasoning. But, if so, realize that we may have to take action against you for violating federal law. We don’t particularly care what your reasoning is about why you bar people who are on MAT from your rehabilitation and reentry program. Our medically well-grounded reasoning supported by our National Institute on Drug Abuse is that such exclusionary treatment is discriminatory under ADA. But please, honorable Supreme Court justices, if you persist, we’ll certainly give you your day in court where you can plead your position to federal judges who are quite familiar with federal law.

And so it appears the PA Supreme Court concludes “well, in that case, we see where you’re going with this and, while we don’t agree, it seems like it makes sense to go along.” And so the suboxone-prescribed folks in the cue for the public access Title III rehabiitation program are allowed entry and can obtain their MAT while they access the oither benefits of the rehabilitation program.

DOJ Statements of Findings of Wrongdoing and Their Consent Agreements (Settlements) Are Public Record

Now, these are not private behind-the-scenes negotiations. DOJ publishes their statements of findings on its website. Which makes you wonder “why would a state board, staffed as nearly all are with lawyers responsible for compliance with state and federal law choose to persist in violating federal law. Did their boards ever consult them on these concerns?

Well, if I were to hazard a few speculations, for one, some state occupational licensing boards seem to believe they’re above the law. That it’s up to them to decide which laws pertain to them. And in part, this has been true. Not that they’re correct in asserting that they’re above the law, but in their truly believing and acting like they are. The concern here is that their acting in this manner is not just a matter of hubris; it has caused extraordinary injustice and deprivation of rights of licensees who ought to have been protected by these laws.

We’ll leave for a separate article why licensees’ counsel have not been arguing aggressively for these licensees’ rights under the ADA and other governing federal laws.⁹

Further, since there’s no active governmental overseer telling them that what they’re doing is in violation of the law, it seems they’ve presumed that it must not be in violation and that the state’s silence on their violation of federal law is implied consent.

Who’s Going To Investigate Patterns of State Agency Violations of Law?

We really must examine whose role this is in state government to monitor adherence to relevant state and federal law. Is this the role of the state auditor? The attorney general? I am not a student of government and so I must claim ignorance in how a state monitors its compliance with applicable state and federal laws. Does it solely rely on litigation to challenge the legitimacy and soundness of that law? I fear that may be the operational principle as I have seen this stance in many physicians’ rights cases. The prevailing principle seems to be "we can get away with it until you challenge us, and until you successfully challenge us, then we can get away with it. But even if you do succeed in your challenge, we'll arrange a special settlement with a strict nondisclosure agreement that prevents that wrongdoing from being brought public.” Fair to say, something is quite seriously disturbed about this, eh?

And further, I suspect they figure - rightly - that very few people are going to challenge their authority. For one, it’s very expensive to take on a state agency. The odds are overwhelmingly against the challenger because straight out of the gate, the civil courts assume the integrity and internal coherence of the agency. The courts seem basically to reason “it’s a state agency; surely they’ve got oversight and internal controls. So until that’s proven otherwise, we presume they’re acting in the bounds of law. And even if they aren’t, there’s bound to be a special reason why, so we’ll cut them slack for that too.”

Even finding knowledgeable counsel to take on this challenge is a tall order. Lawyers know that this is an exceedingly costly process to undertake. Most licensees don't have a large budget to allocate to defending their licenses while asserting wrongdoing by the organization itself. And besides, the most you can hope to get back is your license. You're essentially clawing your way back to ground zero. In the vast majority of cases, you will not be able to receive compensatory or punitive damages nor recovery of attorneys fees. Nor understandably will any attorney take your case on a contingency basis. High cost, high risk, very low yield. “Sad” as one popular tweeter might have remarked.

Reading between the lines here … what really seems to be happening in this remarkable series of ADA medication-assisted treatment cases is that DOJ, perhaps after receiving a trainload of complaints from aggrieved licensees across the country, finally decides to enter the scene. Upon seeing this pattern of flagrant disregard of federal law, I can only imagine that they would just about scream “is there anybody here in a knowledgeably legal capacity who’s advising this state organization about its operations being unlawful. Or is there anybody here who even knows what the law is? Or, God forbid, do you even care?”

Indiana BON Will Have To Pay Compensatory Damages to the Complainant and Other Aggrieved Individuals for Injuries Caused by the Nursing Board’s Actions

And when you get right down to it, DOJ ultimately concludes in this Indiana nursing board case “we don’t know whether you really believe the law doesn’t pertain to you or that you’ve been given special dispensation to ignore the law, or whether you thought you could continue to get away with non-compliance simply because it’s too expensive for most to challenge the agency, or that you’re confident that the administrative and civil courts will rule in your agency’s favor no matter what …. It's probably some combination of all of these, but it doesn't really matter. That’s for you to examine. And examine you should.

Because in this case, we are in fact going to hold you liable for compensatory damages, and not only on behalf of the individual nurse who had the temerity to bring suit but for others who have been aggrieved by you as a result of your ADA-violative policy.¹⁰

This introduction by DOJ of compensatory damages is quite exceptional. I would imagine that each nurse who’s been deprived of re-entry into their profession due to the program’s refusal of MAT applicants has likely lost their license and perhaps been so stigmatized that they’ve been unable to find work. Apart from the pain and suffering accompanying this, looking strictly from an income standpoint, let’s speculate that one nurse/year income would be $100,000. Let’s conservatively say there are ten nurses who’ve been deprived of re-entry on MAT for the last five years. That’s $5M. And their loss of income will continue for the rest of their work lives. It’s not difficult to imagine $30-$50M as an expected cumulative damage. I wouldn’t be surprised if DOJ arrived at a similar calculation.

Now, let’s just make note here – this could get very costly. Not just for IN BON. If DOJ finds a similar pattern with other boards - nursing, medical, dental … - and also holds them liable for compensatory damages, we’re talking serious money.

When the NC Dental Board lost its antitrust case in the US Supreme Court against the independent non-dentist tooth whitener businesses they’d threatened to arrest and succeeded in running out of business in the state, the court essentially told the dental board “sorry about the bad news. But in addition to losing your antitrust case, you’re on the hook for the damages and attorneys’ fees. Whether you or the state pays is up to you to work out. Good luck, and keep flossing.”

Bottom line, DOJ is saying to IN BON and all other governmental (i.e. Title 2) authorities that what matters is that you’re in overt violation of the ADA. We don’t care what your reasoning is. We don’t care what cherry-picked, industry-influenced studies you cite to support your policy. And we’re not going to sweep it under the rug just because you’re powerful government-selected honchos who write your own rules and all the courts bow to your infallible determinations. It doesn’t matter whether your governor gives you a wink and a thumbs-up, your legislature declares you the infallible czar of your profession, or the FSMB or FSPHP or AMA supports you. IT DOES NOT MATTER. There are federal laws that protect all citizens of this nation no matter what state they reside in. And as long as you're a part of this confederation we refer to as the United States, you must abide by them.

That's rather sobering. I bet it must be especially so for those who enforce sobriety for a living. I suspect they’ve not experienced this version of sobriety before.

And it is greatly heartening to those who have advocated for physicians’ and other healthcare clinicians’ rights when dealing with their challenge-resistant, feedback-deaf licensing boards and their specially contracted “preferred” professional assistance programs.

So, What’s This Mean For Docs Who’ve Been or Are Being Harmed by Their Boards or PHPs or Their Health Care Organizations?

What it means is that every physician and healthcare clinician who has been harmed by the illegal policies of the uniformly restrictive, abstinence-based PHPs in their state and its rubber-stamping support and license restriction or revocation by that licensing board or credentialing authority now has extremely good cause to bring action against that entity if their ADA rights have been abused. And they should also file a complaint with US DOJ’s Disability Rights Section. After all, the only way they’ll know there’s a violation is if you report it and they investigate.¹¹

And by the way, this is not new law. It’s assertive enforcement of existing law that has been routinely abused.¹²

We will reserve for another piece looking more closely at an until now entirely unexplored question: why aren’t state authorities and lawyers within these agencies taking an active role to mandate compliance with federal law. (My speculation: some combination of ignorance; arrogance; cronyism; playing the odds; agency protective NDAs; and moral cowardice.) Because I suspect it’s a question DOJ is bound to have been pondering. “State governments! What the hell’s going on with your own oversight and compliance mechanism and your agencies’ internal compliance controls? Why are you not abiding by the ADA, a thirty-one-year-old federal law with well-established guidance, and why is it up to us to come in and tell you to shape up?”

I think it would also be a perfectly appropriate question for DOJ to ask "if you don't have active oversight by your state government with regard to your compliance with law, then are you really a state agency that can be invested with police powers and be eligible for immunity from suit?”

In the next article, will explore what might be the larger meaning of DOJ’s actions and what that might portend for similarly situated agencies in the medical regulatory arena trampling over physicians’ rights. Personally, I think it augurs well. I suspect DOJ is just getting its feet wet and is carefully studying the state occupational licensing board territory. Ooh boy, unwarranted mandates for fitness for duty evaluation under threat of emergency suspension of license; complete lack of individualized case analysis; denial of due process; unethically conducted and illegal medical examinations prohibited by EEOC guidance; routine use of suspect laboratory tests known to produce false positives and explicitly advised against by SAMHSA; forced treatment at "preferred" programs; interrogation by polygraph experts on staff at these programs; exclusive use of abstinence-based programs centered upon a religious model with explicit prohibition of utilizing other medically supported treatment programs; arbitrary and capricious terms of monitoring; violations of legally protected confidentiality of protected health information; physician health programs conducting medical activities such as psychiatric consultations and ordering and interpretation of medical and psychological tests with no physician on staff as a qualified medical officer … the list goes on. Someone needs to warn them that they’re about ready to enter the Twilight Zone.

DOJ’s Monitoring Program Isn’t New

Meanwhile, back in Louisiana , in 2014, the DOJ put the Louisiana Bar and its overseer the LA Supreme Court on a four-year monitoring program for their failure to refrain from asking impermissible mental health questions on their Bar exam. By 2019, the LA bar had completed its very detailed 4-year monitoring agreement.¹³ And a colleague’s review of FOIA-obtained records from that compliance monitoring period indicates that it did indeed comply.

Maybe it’d be good if the IN BON had a chat with LA Bar people to see how it went for them, living under the scrutiny of federal prosecutors who could likely yank their license authority if they continued to act in illegal ways.

Boy, I sure wish there were a 90-day program they could all go to where they could learn about their worsening character disorder manifested by their grandiose “above-the-law” dictatorial arrogance, and become more open to guidance from a higher power. They’d get to attend legal and ethics educational classes and read from the Big Book of Federal Laws, and learn to live more wholesomely, free of the destructive craving for power and prestige. And when they left, to be sure they're safe to practice, they’d be put on a compliance monitoring program run by the US AG.

Aach, such devilishly wishful thinking.

But hey, here’s an idea. When a state licensing agency or any of its rehabilitation industry entourage violate federal law, then they would be ordered to report to a four-day program where every member of a board and PHP would pay out of pocket to be assessed by DOJ lawyers, with polygraphs if necessary, to determine if they’re fit for medical regulatory leadership or if they constitute a danger to the public.

Hmmm.

1. The PHP or “Physician Health Program” program widely used by medical licensing boards across the country conducts board-mandated so-called “fitness for duty” assessments. In doing so, PHPs often refer licensees for costly assessments at pre-selected “preferred” contractors who conduct “official” multi-person assessments with the patina of mental health legitimacy. Certain of these contractors even offer the unusual services of a polygraph examiner. Many seem to endorse the same “white knuckle” approach to opioid use disorder, namely no medication-assisted treatment under any circumstance.

2. “Justice Department Finds that Indiana State Nursing Board Discriminates Against People with Opioid Use Disorder” OPA | Department of Justice. See https://www.justice.gov/opa/pr/justice-department-finds-indiana-state-nursing-board-discriminates-against-people-opioid-use

3. From the US DOJ site: “We uphold the civil rights of all people in the United States. The Civil Rights Division enforces federal laws that protect you from discrimination based on your race, color, national origin, disability status, sex, religion, familial status, or loss of other constitutional rights. If you believe your civil rights, or someone else’s, have been violated, submit a report using our online form.” Find link to form here: https://civilrights.justice.gov/

4. Try asking one of these bodies what their supporting evidence is for a policy stance and what criteria did they use to select that evidence and see what you get in reply. These governmental entities are not exactly fans of state Sunshine laws. If you do make an inquiry of a board or its PHP in relation to this current matter, seeking its policy on MAT and their evidence for prohibiting it, please do share it. If you do not get any response to your inquiry, and the entity remains in non-compliance, you should notify the US DOJ via a complaint indicating that your concern pertains to this Board or PHP or credentialing entitiy’s policy on MAT.

5. “In the treatment of opioid use disorder, buprenorphine is an agonist/antagonist, meaning that it relieves withdrawal symptoms from other opioids ….” See https://en.wikipedia.org/wiki/Buprenorphine

6. I use this demeaning dialog as an example of the inherent bias many have re addiction. It’s based on a stereotype of those grappling with addiction, implying that their problem is self-chosen and they could if they really wanted, just get off of narcotics or other drugs of dependence. It may surprise you to learn that many people have fallen into addiction either because of appropriate use of a prescribed narcotic medication or sporadic experimentation with a “recreational drug.” Few are aware of the powerful brain-chemical hijacking that rapidly occurs with such drugs. Most who are addicted do not enjoy their plight. They are desperate to get free from it. Depriving them of access to known effective treatment is both counter-productive and cruel.

7. This is my superimposed dialog serving only as an analogy. The prisoners’ advocates and DOJ didn’t actually make these arguments.

8. OUD = Opioid Use Disorder,” i.e. narcotic abuse or dependence.

9. For example HIPAA, GINA, 42 CFR Part 2 et al.

10. This DOJ Letter of Finding warrants close reading of all six pages. See the full correspondence here: https://www.ada.gov/indiana_nursing_lof.pdf

On the last 2 pages, here’s the “recommended” course of action (emphases mine):

“The Nursing Board has violated and continues to violate Title II of the ADA in its treatment of individuals with OUD, including the Complainant. To remedy these violations, and to protect the civil rights of individuals with OUD going forward, the Nursing Board should promptly implement corrective measures, including the following:

1. Adopt or revise written policies to eliminate the ban on ISNAP participants using medication to treat OUD and to explicitly state that the Nursing Board, and its contracted vendors, may not discriminate against, exclude from participation, or deny the benefits of its services, programs, or activities—including ISNAP—to qualified individuals with disabilities because they have OUD.

2. Appropriately train and educate all Nursing Board staff and the staff of ISNAP vendors about OUD and the nondiscrimination requirements of Title II of the ADA.

3. Pay compensatory damages to the Complainant and other aggrieved individuals for injuries caused by the Nursing Board’s actions described in this letter.

4. Provide the United States with written status reports delineating all steps taken to comply with these requirements, including the date(s) on which each step was taken, and, where applicable, information sufficient to demonstrate compliance.”

DOJ concludes with their characteristic decorum and their invitation to cooperate.

“We hope to work cooperatively with you to resolve the Department’s findings in this matter. If the Nursing Board declines to enter into voluntary compliance negotiations or if our negotiations are unsuccessful, the United States may take appropriate action, as described at 28 C.F.R. §§ 35.173 and 35.174. We will also share a copy of this letter with Complainant.”

In the closing paragraph, DOJ gave IN BON seven - 7 - days to respond:

“Please contact [***], Trial Attorney at the Disability Rights Section of the Civil Rights Division, [***]@usdoj.gov within seven days of receipt of this letter if the Nursing Board is interested in working with the United States to reach an appropriate resolution along the lines described above.”

All things considered, that’s quite generous, given that medical boards give their licensees about 1 day to enter into a “consent agreement” under threat of immediate revocation of license and public shaming prior to any even quasi-legitimate hearing.

11. It may be to your advantage to write a certified letter to your medical board president and its executive director and its legal department head indicating your concern about whether they are compliant with the medication-assisted treatment policy as mandated by the ADA. If they are not, ask them to explain their rationale and the supporting studies. It may be in your best interest at that time to notify the governor and to concurrently file a complaint with the DOJ.

12. Quoting from the Bloomberg News piece here:

The DOJ’s guidance “doesn’t change the law but it does send a message that DOJ will enforce the law,” said Regina LaBelle, former acting director of the Biden administration’s Office of National Drug Control Policy.“ It signals that DOJ is serious about protecting the rights of individuals in recovery from a substance use disorder, and most specifically, protecting the rights of individuals to receive medications for opioid use disorder,” LaBelle said. The Obama administration’s ONDCP—where LaBelle was chief of staff—worked with the DOJ to put language in grant programs ensuring people weren’t required to stop taking their medication as a condition for participating in drug courts.” See https://news.bloomberglaw.com/health-law-and-business/opioid-recovery-gets-bump-with-doj-disability-protection-guide.

13. See https://www.ada.gov/louisiana-supreme-court_sa.htm