On October 12, 2019 The Washington State Medical Association (WSMA) considered a resolution entitled "An Ethical and Effective Physician Health Program for Washington".
The Resolution asked merely that statistics regarding effectiveness and suicides experienced within the program participants be readily available from the department of health for this (licensure fee sponsored) program; that WSMA support national standards for PHP treatment including ADA compliance in evaluation, diagnosis, and management, that treatment recommendations be timely, and not cost-prohibitive, and that WSMA should support a mechanism for meaningful appeal of PHP decisions (which could result in licensure action if participants do not agree or do not comply in all respects).
Washington PHP currently does not allow participants to have copies of their evaluation, treatment or monitoring records, claiming that they are not medical records---which makes any form of appeal relatively difficult, if not impossible. The PHP also will not communicate with attorneys for participants, claiming patient privacy concerns. The resolution further recommended education of employed physicians regarding their right to know the terms of their liability insurance policy (apparently WA employers are denying this right to physicians) and to know whether such insurance covers regulatory actions (reportedly some liability policies maintained by physician employers do not), and that they be made aware of the advisability of obtaining such coverage if their policy does not.
The pushback from the WPHP against the resolution was well organized by Chris Bundy, EMD of the WA PHP. In essence, his argument was: "Trust us, we're from the PHP and we're here to help you."
Apparently there was lively testimony at the HOD, witnessed by AMA President Patrice Harris, but essentially WA delegates did ultimately buy Bundy's argument. Meanwhile, WA licensure fees will be substantially increased in 2020 in part to help finance this WA PHP, which has demonstrated wilful disregard of the Americans with Disabilities Act (ADA), has experienced a number of participant suicides and continues to be one of the most repressive in the US. (Increasing licensure fees to cover costs of "services" only accessed by a few licensees, incidentally, is an illegal surcharge. The fact that WPHP embraces almost exclusively faith based abstinence-only rehabilitation programs for Washington licensees, makes this also an issue of religious coercion.)
Here is my complete response to the resolution. In researching the matter, I realized that the FSPHP "PEER" document that will soon be applied as a way of justification of the practices of all PHPs in the nation (beginning with WA) is not only going to be overtly anticompetitive in its effect, but is RIFE with provisions that are blatantly violative of the ADA. Bundy, incidentally, was President-Elect of the Federation of State Physician Health Programs, which organization is behind this anticompetitive initiative, being promulgated in the guise of "Peer Review" and accreditation.
Again in 2020, the WSMA HOD was asked by a Delegate to consider the issue of outcomes opacity and ADA ignorance by the WPHP. The Resolution asked that WSMA lend support to the concept of a Cochrane type analysis of outcomes from the PHP, that the PHP publish its ADA compliance plan, and that WSMA members be advised regarding limitations on coverage by liability insurers for protection of their rights in licensing and ADA issues.
The pushback was immediate, vicious, and well organized, from the very top levels of the organization (which was a co-founder and key supporter of the WPHP). Pushback included staff's attachment of an incredibly inflated fiscal note to the resolution, and allowing comments by the PHP director to be posted in the online resolution discussion forum after the published deadline for such comments had passed preventing (presumably purposefully) any opportunity to refute spurious claims that he made, and a well orchestrated mobbing of the Delegate by a cabal of WSMA HOD members who seem to have a kind of blind faith in their shibboleth, WPHP. Among other things, the claim was made that an ADA compliance plan was already posted on the WPHP site. This was in fact a demonstrably false claim. When it was actually posted, the document properties confirmed that the (remarkably limited) plan was only created, let alone posted, after the submission of the resolution. I understand that there was a (thwarted) effort to censure the proponent of the resolution by one of the most vocal mobsters. Leads one to wonder whether some of these people had more than a theoretical interest in unfettered defense of the PHP.
Here is a recently published horror story regarding the WPHP by a physician who was mistakenly referred to them by her employer in an effort to improve the organization's reimbursement by improving her Press-Gainey scores. As a result of what amounted to serial re-victimization of this sexual assault surviver, in order to facilitate wholly unjustified substance monitoring, this neurologist with a previously blemish-free record is no longer able to practice medicine. Understandably, her former employer as a result of this debacle refuses to deal with the PHP, as have several major healthcare employers in other parts of the country.
Here is the backstory of my interest in this problem.
I was a staunch supporter of PHPs for physicians dealing with depression until 2016. See my 2006 EPM article "PHPs are in Your Corner" which was written after many Emergency Physicians responded to a survey I published in EPM (after a story I wrote about suicide prevention) that they would rather die than face the consequences of reporting to their MLB (medical licensure board). At the time, I felt I urgently needed to educate readers about a safer alternative.
Ten years later, EPM repeated the survey and results showed that not a lot had changed. Emergency Physicians still felt threatened by MLBs and now also had grave concerns about PHPs. My May 2016 article "PHPs: Still in Our Corner?" reflected my growing doubts and somewhat tempered advice about when and how to approach PHPs (VERY cautiously).
A 2017 study I coauthored with Katherine Gold MD confirmed that emergency physicians are not the only specialty concerned about reporting a mental illness to an MLB/PHP. While almost half of the surveyed physicians (all mothers) felt that they had suffered a mental illness at some time, only 6% had disclosed to an MLB. The reason? Dire consequences suffered by those they knew who had, some of them involving only the Boards (intrusive questioning, records production) and some involving PHPs ($1K evaluations taking place in coffee shops, unnecessarily restrictive inpatient stays in out of state exclusively faith based abstinence rehabilitation facilities even absent criteria for substance use, prolonged monitoring requirements, astronomical fees not covered by insurance because not medically justifiable).
I have served for many years as a counselor to physicians both as chair of the Personal and Professional WellBeing Committee of ACEP and as the founder and principal of MDMentor.com, which deals with litigation stress and more recently also regulatory board stress. Because of a number of reports I have received from individuals with mental illness being diagnosed by PHPs with substance abuse without meeting diagnostic criteria, it appears to me that currently the typical PHP philosophy, and many of their operating policies, may increasingly be influenced by things (such as the inducements of the $12B drug testing and the $34B drug treatment industry) other than pure advocacy for their potential "deep pocket" physician patients. While I wish I could 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 any decisions about engaging with a PHP. And be sure that your attorney actually understands the ADA, as most do not.
Don't believe, as many do, that PHPs exist first and foremost to help doctors. Perhaps they did at one time, before it was realized that enormous profits could result from drug testing and drug rehabilitation of a population that is uniquely vulnerable because of the power held over them by the criticality of their professional licenses. A detailed history of the development of PHPs and FSPHP is available here (p. 55-74) in "Abuse and Neglect in USA Residential Treatment Centers by Medical Whistleblower Janet Parker, DVM. The history is accurate as of the time of its writing (2016) with the omission of the important fact that PHPs operate using the power of, but without meaningful supervision by, respective medical licensure boards.
Here is a frightening recent case explaining why such 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 like many if not most is poorly managed and unsupervised by its MLB. Many other articles have appeared, confirming my fears.
The only literature I have found that roundly supports PHPs seems to have been written by those from within the industry who have obvious conflicts of interest.
In contradistinction, here is a cogent essay by a former PHP Associate Director, detailing how PHPs extract exorbitant fees for prolonged, out of state inpatient treatment of vulnerable physicians for diagnoses that are not established using medically accepted criteria. Much compelling commentary by victims and observers follows this essay.
The BMJ on July 1 2016 published "Physician Health Programs Under Fire" by investigative journalist Jeanne Lenzer. The article asks disturbing questions about significant potential conflicts of interest emerging from some of these programs.
47 states and all Canadian provinces maintain some form of Physician Health Program (PHP). Suicide prevention is an avowed 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 or drug testing industry, there is absolutely NO evidence based justification for the claim made by PHPs that physicians require three times longer than the general public, in inpatient rehabilitation programs frequently far removed from home and social supports, in order to begin to be "recovered" from SUD. Experts and even PHP directors have admitted that physicians are far more likely to readily recover from substance use disorders than non-physicians, because of their educational level, their motivation to continue in practice and to protect their reputations. Such prolonged inpatient hospitalizations are almost certainly motivated by the deep pockets of physician clients, something that has been admitted under oath by one former NCPHP director.
Nor is there any scientific justification for the almost invariable requirement of five years of substance use monitoring following PHP enrolment of physicians for most conditions, even those that do not involve a diagnosis of substance use. Data from a single 2008 study of PHP participants, paid for and conducted by RLDuPont, who has made a fortune from drug testing and EAPs, a study that was never subjected to rigorous statistical analysis, has been endlessly mined and recycled by various PHP supporters for at least a dozen articles proclaiming the unparalleled success of intensive and prolonged treatment and monitoring for physicians. Given the grossly deficient statistical analysis, that the original study was sponsored by an individual who has profited for decades from drug testing and treatment programs, and the admitted fact that physicians are, according to Dr. LeClair Bissel, a pioneer in addiction treatment and of the American Society of Addictions Medicine, far EASIER to cure from addictions than non physicians BECAUSE of their concern for their licenses, there can be little credence given to claims that this paradigm or blueprint of draconian rehabilitation treatments for physicians is other than financially motivated. See more here.
In recent years, starting with ASAM and spreading to its sister FSPHP (ASAM chapters were the progenitors of PHPs, and Paul Earley was in 2019 president of both), there is an all-out effort to claim that physicians and others in healthcare are "safety-sensitive" workers with access to controlled substances (which of course is not invariably the case---most of us do not have ready access due to hospital and other institutional regulations and state laws against self prescribing) and therefore require more intensive treatment for addictions. This co-option of a legal term in a non-legal setting as if it maintained the same meaning (because it does SOUND sensible), is a common form of gaslighting, designed to convince regulators (and even the regulated) that the ASAM/FSPHP "Blueprint for Recovery" is something other than a cash cow.
Furthermore, there is evidence that ASAM hopes to push its philosophy on other professions, as evidence by its experts claiming in some places that ALL licensed professionals (watch out, judges and attorneys) occupy "safety-sensitive" positions. See for example this presentation by Earley.
The almost invariable pattern of referrals to "selected"rehab facilities (selected on the basis of NO criteria according to the NC PHP audit) being reported to me as promulgated by PHPs is worrisome. Especially since I have personally observed the fact that "selected" rehabilitation facilities that require cash up front from physician patients on pain of licensure reporting by the referring PHP for "substantive noncompliance" would sponsor retreats, receptions, dinners, and other inducements to PHPs individually, or via meetings of the Federation of State Physician Health Programs. The NC auditor described this and other types of financial agreements between PHPs and "selected" facilities as representative of prohibited types of business arrangements, suggesting COI.
Physician Health Programs have a variety of types of relationships with state licensing agencies. Some information about the existing relationships can be found here.
Most programs allow for self reporting of illness or suspected impairment by practitioners of medicine or by concerned colleagues or others (including anonymous complainants). Then, if and only if no complaints or licensure actions have been initiated concerning a physician, the physician can in most states voluntarily enter into a confidential relationship with a PHP to secure evaluation and treatment for any impairment. However (and this is critically important to understand), in most if not all programs, such confidentiality can be broken, and reports made to the MLB if the physician does not comply, in every respect, with any and all demands made by the PHP. Even if the demands are unreasonable, as for example requiring participation in AA meetings by individuals who have never had a criterion based diagnosis of alcoholism.
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 nearly exclusive adherence to a 12 Step
recovery model that is ill suited to the intellectual capacities of many
physicians, including apparently this young physician. There has since been a documentary released, entitled "Do No Harm", that features Greg's family and those of other young physicians who have completed suicide. Some like him were participants in a PHP that required submission to draconian treatment and career interruption. Others were afraid to admit to a need for care for fear of the types of discrimination they might experience at the hands of their MLB and/or PHP.
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 past 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 diagnoses justifying admission, or without even reasonable verification that there is in fact a currently impairing condition.
For example, physicians referred for a comprehensive 4 day evaluation ostensibly to determine the need for further treatment (when calling the facility to determine anticipated time of discharge on the fourth day or the type of clothing to bring) have reported that they have been told by rehab facility staff, that "Oh, ALL of our physicians stay 90 days".
Even more disturbing are verified reports that NON-physicians working for certain PHPs are countermanding the orders of personal physicians (with ongoing patient-physician relationships) for their physician clients 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. This disturbing pattern is also being seen in medical students who have been on ADHD medications since childhood.
Even more disturbing are verified reports that NON-physicians working for certain PHPs are countermanding the orders of personal physicians (with ongoing patient-physician relationships) for their physician clients for legally prescribed (and sometimes life saving) medications. The rationalization given is that such medications as sleep apnea or asthma medications might interfere with PHP-ordered drug testing. This disturbing pattern is also being applied to medical students who have been on ADHD medications since childhood.
Refusal to cooperate with such an illegitimate demand made by a non-physician (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 of the physician by the MLB. Whereas in fact, such a refusal would be a legitimate response by a party to disability discrimination under the ADA. Retaliation by a Title II entity such as a PHP or MLB via an adverse licensure action for refusal to cooperate with discriminatory treatment carries severe penalties under the ADA.
At the suggestion 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 NC is now calling 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 can result in a diagnosis that can lead to institutionalization. However, the hastily passed and 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, as it is always assumed to be the case. Ordinarily, good faith means that something is entered into with the intention to be fair, open and honest. Not divulging the results of an evaluation that can result in deprivation of liberty could never in my opinion be considered to be fair, open, nor honest; and thus by definition to my way of thinking any such practice is not being performed "in good faith".
Interestingly, the NCPHP is licensed and claims to be a nonprofit charitable educational organization. It is NOT a medical practice registered and licensed with the Medical Board, as would be required by the state Medical Practice Act as well as state corporations law, in order for it to legally perform diagnostic activities of any kind.
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 clearly the unauthorized practice of medicine, by a psychologist. There are verified reports that this is what is happening in North Carolina.
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 exist in NC, and probably in any other states that follow this model of management by a non-physician.
The disturbing Kevin
MD and subsequent videos by Pamela Wible, and feedback from readers seem to
corroborate the reports of some of the respondents to the Medscape
articles. The entire truth about PHPs is just beginning to emerge, and it
is quite difficult to know how to advise. There are substantial
state-to-state variabilities that may make a significant difference.
Medscape also has published an article by Sandra Levy "Why Do Depressed Doctors Suffer in Silence?" 6/26/17 based on reader response to a prior article, "Doctors and Depression: Suffering in Silence" by Pamela Wible. Wible's article was based on a survey of over 200 physicians who explained how they dealt with depression (not well). The responses to both articles were disturbing, and telling. Doctors do not reach out, because they (rather rationally it seems) fear regulatory consequences. Many such consequences, some dire, are detailed by physicians responding to the survey and to both articles, as well as to the Gold article.
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.
See also References page for useful new articles pertaining to this issue.
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, such as the authors of the original study on treatment of physicians, 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 rather disingenuously did not identify himself as a former associate Director of a PHP, responded by a LTE (taking issue with the Boyd article) in January of 2016 in the same journal, claiming that Boyd (a former associate Director of the very same PHP, and therefore in all likelihood a professional colleague if not a co-worker) did not understand the "social contract" which, according to Candiliss, requires that PHPs function as they do. Candiliss asserted that "there is as yet no evidence that PHPs have a financial incentive to refer physicians to treatment programs" , which is a very strange way of arguing that no such financial incentives exist. Indeed, such potential conflict was strongly suggested in the NC PHP audit. To me Candiliss' claim is specious. Every statement in the audit is backed up by the auditor, every conclusion is straightforward, and the report 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. The medical director, a psychologist counselor, is decidedly NOT a peer of physicians and thereby has no right to perform peer review of any physician. 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 did not even address this issue, and both the attorney general and the NC governor’s office has tacitly admitted that no oversight is occurring even now.
In the AMA Journal of Ethics LTE detailed 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 (as surely he cannot be ignorant of the fact) 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. Attorneys typically demand substantial retainers to take on such complicated regulatory cases. Many physicians who have paid $4-5,000 for evaluations mandated by a PHP and up to $150,000 for unnecessarily lengthy inpatient treatment do not have the financial ability to retain counsel in order to obtain due process, which due process should of course have been their right ab initio.
Candiliss also baldly asserts 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.
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. Not much has changed in the interim.
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, undertaken in the name of patient safety but 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 unethical and in some cases illegally discriminatory tactics of regulatory agencies such as these.
It seems critical at this point in time for physicians with pure mental health issues (no significant substance use or illicit abuse whatsoever) to ABSOLUTELY resist any attempts to frame their disease process as having any related substance use issues. It is strongly advisable to engage legal counsel whenever approached regarding or and BEFORE being 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 whatsoever (even a "friendly discussion") with the PHP. And it is also crucial to be sure, if you have any medical issues whatsoever, that the attorney is knowledgeable about the ADA (and most AREN'T), or to seek additional counsel from someone who is.
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 simultaneously analyzed in a different forensic lab, insisting on maintenance of chain of custody. This will require a bit of forethought, and representation by an attorney experienced in employment and discrimination law who 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. Miles 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. Miles' story also appears as a case discussion on Medscape at http://bit.ly/SHMilesconsult
MN prepared an extensive report on its PHP in the wake of the Miles case.
In 2018, MI HPRP was the subject of a class action suit by healthcare providers alleging numerous due process and confidentiality violations. Unfortunately, because of the disparities among the plaintiffs (all of whom were ultimately railroaded into drug rehab without justification or due process, on pain of licensure revocation) the court would not certify the class (case cannot proceed as a class action).
The AMA Council on Science and Public Health published a report on Physician Health Programs in 2010. The AMA BOT is again considering the equitable treatment of physicians with alleged mental or physical health issues by MLBs.
AMA and the Federation of State Medical Boards have also revised model legislation regarding PHPs in the past several years. Unfortunately, even 2020 documents do not reveal an awareness of the requirements of the ADA, over three decades since its passage.
The American College of Emergency Physicians (ACEP) has created Model
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 (see Licensure Concerns), yet these 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 a physician 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 "Level 1 Relapse"--- Behavior without chemical use that might suggest impending relapse), which may then make such private medical information public via their website in any disciplinary action. One state was at one time, reportedly 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.
Clinical Psych News published a column by Dinah Merrill "What Stops Physicians from Getting Mental Health Care" in June 2017. The article explores various ways in which many MLBs discriminate against physicians who admit to a mental health diagnosis, the legal cases supporting the illegality of such discrimination under the ADA, and the AMA House of Delegates' recent effort to stop the practice. She also provides details about the Maryland programs, which do not discriminate.
North Carolina MLB has as of spring of 2017 changed its licensure renewal application questions so as to be in compliance with the ADA.
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
For a frightening view of one way in which MLB investigations for NON health related issues can spill over into the health arena, see this and this posted on Medscape by an Emergency Physician. His transgression was to have settled a malpractice claim.
Medscape's Leigh Page has published an article (free subscription required) entitled 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 so many 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.
It is also becoming increasingly clear that all PHPs and MLBs are either ignorant of, or wilfully disregard protections of the Americans with Disabilities Act (ADA). And ANY health provider who is targeted by an entity for behavioral issues is covered by the ADA (is being regarded as having a disabiity, thus meeting one of the legal definitions of having a disability ) unless there is criminal activity. Among other things, decisions under the ADA have made it clear that covered entities (most employers, all MLBs, and PHPs) can only refer employees for fitness for duty evaluations (FFDE) under very narrow circumstances. And when such evaluations (to include out of state mandated evaluations and treatments) are mandated, the referring entity is actually responsible financially. This can easily be verified in DOJ and EEOC advice memoranda, and most notably is memorialized in a parallel DOJ settlement decision regarding Bar applications.
Most physicians are unaware of these protections, and simply comply without seeking legal counsel. Even "professional licensure defense counsel" are often unaware of this protection. Therefore, it is imperative that any physician who is being sent for a PHP evaluation or any other kind of FFDE immediately consult knowledgeable ADA counsel. Acquiescence with such an exam does not make it legal (you cannot agree to be discriminated against), but it is INFINITELY more difficult to recover money already expended under extortionate demands, than to get an injunction against such impermissible demands by a covered entity.
There is more information on MLBs in the section entitled Licensure Considerations and articles in References. Also, there is a Linked In Group (Physician Advocacy Exchange) with more information and resources. If you are a physician advocate, attorney or physician interested in these issues, please link with me on Linked In and ask to be admitted to the group.
I would welcome ALL comments and reactions to this article.
N.B. As the author, I am an observer, with no personal experience in the paradigms described other than as a licensee and counselor to some who have become enmeshed; 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 for many years as an observer, also to be plausible. I have consulted extensively with knowledgeable ADA experts and am happy to provide references.