Physician Health Programs (PHPs)
I was a staunch supporter of PHPs for physicians facing depression until recently. See my 2006 EPM article "PHPs are in Your Corner" which was written after a disturbing number of Emergency Physicians responded on a survey (after reading a story I wrote about suicide prevention) that they would rather die than face the consequences of reporting to their medical board. I needed readers to know about a safer alternative.
Ten years later, EPM has repeated the survey and preliminary results suggest that not a lot has changed. My May 2016 article "PHPs: Still in Our Corner?" reflects my growing doubts and somewhat tempered advice about when and how to approach PHPs (VERY cautiously).
Because of a number of reports I am receiving of individuals with mental illness being diagnosed with substance abuse when diagnostic criteria are not being met, it appears to me that the typical PHP philosophy, and many of their operating policies, may be increasingly influenced by things (such as the inducements of the 34B drug treatment industry) other than pure advocacy for potential "deep pocket" physician patients. While I remain hopeful, at this time I urge you to read this section in its entirety, and consult knowledgeable colleagues in your state and consider engaging an attorney before making your own decisions about participation in a PHP. Don't believe, as many do, that all PHPs exist first and foremost to help you.
Here is a frightening recent case explaining why caution may be advisable. This physician with a longstanding and stable history of treated depression was nearly railroaded into drug treatment by a PHP that is poorly managed.
The BMJ on July 1 2016 published "Physician Health Programs Under Fire" by investigative journalist Jeanne Lenzer. The article asks some disturbing questions about significant potential conflicts of interest emerging from some of these programs. If you have any personal experience to add to the story, it is possible to post rapid responses to the article directly online. Or you may share it confidentially with us.
47 states and all Canadian provinces maintain some form of Physician Health Program (PHP). Suicide prevention is an important goal of PHPs.
There have, however, been a number of suicides reported of physicians
mandated into "selected" longterm residential rehab programs by PHPs. According to substance abuse experts with no ties to the rehabilitation industry, there is absolutely NO evidence based justification for the claim often made by PHPs that physicians almost always require three times
longer than the general public, in inpatient rehabilitation programs frequently far from home and social supports, to be "recovered" from SUD.
Or for the typical requirement of five years of substance use monitoring for most conditions, even those that do not involve a diagnosis of substance use. This repetitive and almost invariable pattern of referrals and monitoring being reported as promulgated by PHPs is indeed worrisome. Especially given the fact that "selected" rehabilitation facilities that require cash up front from physician patients often sponsor retreats, receptions, dinners, and other inducements to PHPs individually or via the Federation of State Physician Health Programs. The NC auditor described this and other types of financial agreements between PHPs and "selected" facilities to be prohibited business arrangements.
Health Programs have a variety of types of relationships with state
licensing agencies. Some information about the existing relationships
can be found here.
The Daily Beast on March 23, 2015 featured a poignant article by Gabrielle Glaser telling the story of Gregory Miday, a gifted young physician with an affective disorder and substance use disorder, who completed suicide in the face of a relapse and threats of punitive action by his PHP. The article is one of the few that talks about the role of PHP's and their general adherence to a 12 Step recovery model that is ill suited to the intellectual capacities of many physicians, including apparently this young physician.
Medscape on August 19 2015 published a disturbing story by Pauline Anderson entitled Physician Health Programs: More Harm Than Good? which elaborates on some of the troubling issues hinted at in the Glaser article. It is well worth a read, as is the rebuttal from the FSPHP by current president Doris Gunderson, another by the ASAM (which organization was the progenitor for the FSPHP), and all the comments relating to these, many from physicians who have been through the PHP process.
The audit of the NC PHP that is referred to in the Anderson article and re-interpreted by Gunderson and others speaking for FSPHP/ASAM can be found here.
A subsequent video
by Pamela Wible on Kevin MD asks whether PHPs could actually be
responsible for some physician suicides, due to pressure on ill
physicians to conform to faith based healing (12 Step programs) aimed at
substance use disordered persons, which participation is mandated on order of most
PHP's and must be undertaken ONLY at certain "selected" (based on unspecified criteria), expensive, inpatient rehab centers. Since there are only a few of these, for many physicians such mandatory hospitalization means travel, isolation from family and friends, and treatment in a state whose mental health laws may vary from their own.
There are many, many reports of long-term (90 day) inpatient drug rehabilitation
mandates being deemed by the PHPs to be absolutely necessary for physicians (when normal patients are "recovered"
in only twenty eight days, or when their insurance runs out).
There are also reports that such referrals
for mandatory inpatient treatment may be made by non-physicians (under the imprimatur of PHP directors who are usually but not always even physicians),
sometimes without any medical examination being performed, without criteria being met for the diagnoses justifying admission, or without even verification that there is in fact a currently
impairing condition. For example, several have reported that a physician referred for a comprehensive 4 day evaluation ostensibly to determine the need for further treatment is told by staff when calling the facility to determine anticipated time of discharge on the fourth day or the type of clothing to bring, that "all of our physicians stay 90 days".)
Even more disturbing are verified reports that NONphysicians working for certain PHPs are countermanding the orders of personal physicians for their physician patients for legally prescribed and sometimes life saving medications. The rationalization is that such medications as sleep apnea or asthma medications might interfere with PHP ordered drug testing. Refusal to cooperate with such an illegitimate demand made by a nonphysician (countermanding legitimate orders issued by a physician's personal physician) is then deemed, and subsequently reported to the MLB, as "substantial noncompliance with the terms and conditions of the PHP contract", and could result in discipline.
It is also reported in legal documents from NC and MI that physicians are being told that their
PHP-generated medical records and the credentials of the persons
creating such records are not accessible by the physician who is
the patient. This does not seem to be defensible. Several state PHPs claim that the evaluations they are conducting on physicians to determine the need for referral for treatment are not medical care, but "peer review".
At the behest of the state auditor, NC has revised its law referencing "peer review" in the context of the physician health program. It is not clear what they will now call the "evaluation" process which takes place in the offices of the PHP, under the auspices of the Clinical Director (currently a licensed professional counselor, NOT a physician), which process results in a diagnosis that can lead to hospitalization. However, the poorly drafted law now offers immunity to PHP staff for such diagnostic evaluations that are performed "in good faith", without defining "good faith". (The concept of "good faith in the practice of medicine" has never been legally defined anywhere.)
Interestingly, the NCPHP is licensed and claims to be a nonprofit charitable educational organization, not a medical practice registered and licensed with the Medical Board as would be required by the state Medical Practice Act and state corporations law in order to legally perform diagnostic activities. Even if this unspecified "evaluation" is a sort of triage, if the person authorizing or performing the evaluation is or holds himself out to be a physician (which requires only the use of the designation "doctor" and undertaking to diagnose or treat in any way), it is under NC law the practice of medicine. If the evaluator is a psychologist, it is the practice of psychology. If the psychologist does not specify his or her doctoral credentials as being in psychology, but demands a change in a patient's medications, this is in fact the unauthorized practice of medicine by a psychologist. There should be accountability in negligence law, and also by the respective licensure boards, for any activity taking place in a PHP that involves assessing for or making a diagnosis that can or does result in treatment decisions. Such accountability not seem to be the case in NC, and probably in any other states that follow this model of management by a non-physician.
I encourage anyone with experience with a PHP (positive or negative) to contact us so that we can continue to develop a clearer picture of what is currently happening in the PHP arena.
Emergency Medicine News published a piece entitled "Physician Health Programs: Coercive or Supportive?" in February 2016. The article unfortunately contained many questionable statements quoted from individuals who benefit directly from profits generated by PHPs. My lengthy response citing the numerous half-truths and serious unacknowledged conflicts of interest by contributors to the article was rejected for space reasons, but a shorter letter entitled "The Truth about PHPs" was published in April. Suffice it to say that much education is needed to understand this complex issue, and those who have not studied it extensively should not ignore the advice of those who have.
J. Wesley Boyd, former director of the PHP in Massachusetts, published a thought provoking article in the AMA's Journal of Ethics Volume 17, Number 10: 885-1005 on October 1, 2015. Entitled "Deciding whether to Refer a Colleague to a PHP", this quite balanced article gave some very useful information about the ethics to be considered by anyone when making such a critically important decision. The article is open source, and can be found here.
A Philip Candiliss, who did not directly identify himself as a former associate Director of a PHP, responded (taking issue with the Boyd article) in January of this year in the same journal, and claimed rather disingenuously that Boyd (a former associate Director of the very same PHP, and therefore in all likelihood a professional colleague if not a co-worker of Candilis) did not understand the "social contract" which, according to Candilis, requires that PHPs function as they do. Asserting as Candilis did that "there is as yet no evidence that PHPs have a financial incentive to refer physicians to treatment programs" is a strange way of arguing that such financial incentives do not exist, because such potential conflict was strongly suggested in the NC PHP audit. To me this claim seems specious. Every statement in the audit is backed up by the auditor, and every conclusion is straightforward and reflects a careful year long investigation. Similar audits of PHPs are being undertaken or contemplated in several states, including Massachusetts and Nevada.
The North Carolina audit was quite extensive, well researched and referenced, and revealed the great potential for conflict of interest inherent in the system as it currently functions. The state auditor, Beth Wood, is well known to "pull no punches". And an auditor is beholden to no one. The NC Medical Society lobbied to change the state statutes in response to some of the audit's most notable revelations (such as the claim that PHP physician evaluations constitute "peer review" and thus are not subject to scrutiny by the individual physicians being "peer reviewed" by the PHP---whose medical director, a counselor, is NOT a peer of physicians). The audit had suggested that state laws should be expeditiously revised so as to provide more meaningful oversight of the PHP by the Medical Board. However, the resulting legislation as it stands, does not seem to have addressed this issue.
Also in the AMA Journal of Ethics letter above, Candiliss argues that due process available during review by hospitals and other credentialling agencies such as medical boards is all that is required by a physician who is undergoing a PHP evaluation, and if that is not sufficient, then suing the PHP is always an option. He neglects to mention that PHPs typically are granted "state action immunity" from suit based on the (questionable, according to the NC audit) assumption that they are supervised by a state agency, the medical licensure board. And that attorneys demand substantial retainers to take such complicated regulatory cases. Many physicians who have paid $4-5,000 for evaluations mandated by a PHP and up to $150,000 for lengthy inpatient treatment do not have the financial ability to retain counsel in order to obtain due process, which should have been their right ab initio.
Candilis also argues that physicians are not vulnerable populations (conveniently obfuscating the fact that physicians whose licenses are under threat are among the most vulnerable of all physicians), and therefore that any research that is conducted on them under the auspices of a PHP is not unethical. Participants have shared with me that a physician who answers "I have not recovered" when queried by a PHP about status in any unblinded "research study" knows that s/he will automatically be sentenced to more years of monitoring. I am told that often the PHP monitors will stand by observing as the data is being entered by the physician client into the ostensibly "voluntary survey". Candiliss also neglects to mention (or is unaware) that any research conducted on ANY population requires fully informed and voluntary consent under the Nurenberg code, well settled international law, and the Belmont report, codified in US law. His was hardly a well reasoned or unbiased critique.
Boyd also created several audio seminars on QuantiaMD addressing this topic, which have evoked numerous comments that are well worth reading. To participate, you must join www.QuantiaMD, which is a free source of useful information and learning, viewed by about 25,000 physicians. His articles on Ethical Issues involving PHPs and Ethical Considerations regarding reporting a Colleague to a PHP are detailed on his website. These and most of the responses of his readers are chilling.
Some of the potential conflicts of interest inherent in recent PHP policies are also detailed in a presentation by Susan T. Haney MD which was given at the Organization of State Medical Association Presidents at the AMA in 2011.
At present we don't know any safer alternatives for physicians to manage significant mental health issues than using physician health programs. Many physicians attribute their very survival to the intervention of a PHP, particularly in situations involving actual substance use disorders. Others feel decidedly differently, that their lives and careers have been ended by unfair and heavy handed tactics, done in the name of patient safety but possibly with far less lofty motives. And there have been well documented suicides of despairing physicians who have felt that their lives and futures were destroyed by the heavy handed tactics of regulatory agencies such as these.
It seems important at this point in time for physicians with pure mental health issues (no substance use or abuse) to ABSOLUTELY resist any attempts by anyone to frame their disease process as having any related substance use issues. It seems to me to be strongly advisable to engage legal counsel whenever mandated into evaluation OR treatment by a PHP. And given the reported speed with which mandated interventions can occur, hiring knowledgeable counsel should probably be done prior to any interaction with the PHP.
When a physician entering into a PHP is required (as all will be) to submit to drug abuse testing, a physician should insist on witnessed, split samples, and pay to have them analyzed in a different forensic lab, insisting on maintenance of chain of custody. This will require a bit of forethought, and an attorney experienced in employment and discrimination law can help to locate the required labs and procedures.
Steven H Miles, an acclaimed medical ethicist, was targeted by his MLB in 1998 while faculty after revealing to a class of medical students (who had recently lost a colleague to suicide), his own struggles with depression. His JAMA Piece of my Mind is poignant. I only recently learned that Miles had made a complaint of discrimination under the ADA to the Department of Justice without a lawyer, received a supportive opinion letter, and the MN licensure board (after ignoring the first letter) responded to a second by giving up its quest to demand Miles produce his psychiatric records and put Miles in longterm monitoring by the PHP. Miles' followup article from Minnesota Medicine is very difficult to find, but it tells the story of his wise and courageous battle with the state. Psychiatry News also covered the story. Many would do well to follow his example.
MN has prepared an extensive report on its PHP.
NC PHP was audited in 2014 by the state auditor, who found that the program lacked objective and independent “due process” procedures, as are required by statute, and existing programs created both the appearance and opportunity for conflicts of interest aggravated by lack of oversight. Confidentiality vis a vis the Medical Board was cited as lacking and problematic, as it gave the opportunity for coercion by the PHP using the threat of medical licensing action for any dissent or noncompliance by the physician.
In 2015, MI HPRP is currently the subject of a class action suit by healthcare providers alleging numerous due process and confidentiality violations.
The AMA Council on Science and Public Health published a report on Physician Health Programs in 2010.
AMA and the Federation of State Medical Boards have also revised model legislation regarding PHPs in the past several years.
The American College of Emergency Physicians (ACEP) has created Model PHP Legislation
Medical Licensure Boards
It is impossible to discuss PHPs without mentioning the very close relationships they maintain with Medical Licensure Boards (MLB's). What you don't know about this relationship could really hurt you.
Some of the questions asked on many MLB applications are clearly impermissible forms of discrimination under the ADA, yet they continue to be asked, and honest answers can result in a referral to a PHP. See this case study (which is a verified personal account) as to what might happen. Once one is enrolled in a PHP, any and all of their medical history can be revealed to the MLB on very tenuous grounds (such as the notorious "impending relapse"), which may then make such private medical information public via their website in any disciplinary action. One state was at one time, remarkably, enthusiastically tweeting disciplinary actions against physicians. Some are also known to monitor police blotters, for example swooping in on physicians named in minor fender benders in order to attempt to find disciplinary targets.
Some of the potential conflicts of interest between MLBs, PHPs and the drug treatment industry are detailed in a presentation by Susan T. Haney MD which was given at the Organization of State Medical Association Presidents at the AMA in 2011
Medscape's Leigh Page has published an article (free subscription required) on the "Black Cloud of a Medical Licensure Board Investigation". The article is well researched and balanced, and the article as well as numerous comments by readers are enlightening. It is little wonder that such large numbers of physicians are unwilling to admit to known or suspected mental illness due to fears of professional, and particularly licensure consequences, as demonstrated in this 2016 article by Gold, myself and others.
Here is a 2015 article by Matt Freeman on a blog named "MedFly" that explains in great detail how MLB actions can affect the career and life of a physician. There are some inaccuracies in this posting, but a lot of it is true.
It is very clear that the effect of investigation by a licensing entity can be damaging emotionally, even to the point of suicide. Here is a frightening BMJ article by Bourne describing the phenomenon in the UK; it is no different in the US. Significant depression and anxiety, even to the point of suicide, and adverse effects on subsequent practice were experienced by most who had been recently investigated.
Here is an article written by a California attorney entitled "What to Do when the Licensing Board Comes Knocking". The advice is relevant to all Medical Boards although of course each will differ. Bottom Line: Do NOT go it alone, no matter how innocent you are. Your belief in the possibility of achieving justice in a fair system could potentially deprive you of your livelihood.
I would welcome comments and reactions to this article. I am an observer, with no personal experience in the paradigms described other than as a licensee; however the sources referenced are deemed by me to be credible and, given my participation at both Federation of State Medical Boards and Federation of State Physician Health Program meetings, where I represented the American College of Emergency Physicians as an observer, also to be plausible.