Dr. Phelan-Adams is correct when she states that PHP's are not the only state sub-divisions or contractors that may adversely affect a physician by dint of illegal means.

Medical boards are subject to ADA Title II. Title II generally follows the requirements of Title I which applies to private sector employers. A state licensing agency may not discriminate against a qualified person on the basis of disability, a record of disability, or a perception of disability. However medical boards are explicitly-permitted under the law to seek fitness for duty medical examinations if they have reasonable, objective bases to suspect that a physician's current impairment poses a direct threat to others. The restrictions that apply to these medical inquiries are quite stringent as regard justification for seeking for them, the agency paying for them, the scope of the examinations, and the scope of the communications from the forensic examiner back to the licensing agency. Basically, if the request is justified under federal law, if the board pays for it, if the scope is limited to address the specific questions regarding current impairment and risk assessment to others, and if the report is limited to conclusions rather than a blanket disclosure of medical records, then it is permitted.

As a fitness for duty examination ordered by a medical board, treatment cannot be ordered and any assessment of risk must be individualized and take into account reasonable accommodations.

Medical boards have followed FSMB (which is a trade organization and not a regulatory body) advice and tried to convert fitness for duty evaluations into referrals for diversion from discipline. In doing this, they often define a history of a variety of medical diagnoses as evidence of "unprofessional conduct" that warrant sanction. Those justifications violate not only the ADA but also basic constitutional protections. In the overwhelming majority of cases these "diversion from discipline" arguments are merely cynical constructs that will not withstand much legal scrutiny.

Actually, I think that state medical boards who follow the strict requirements involved in getting fitness for duty assessments under ADA Title II would be a refreshing change from current board practices.

State medical boards that employ the practices described by Dr. Phelan-Adams are NOT remotely close to complying with the mandates of ADA Title II. Moreover, in the case of the Ohio medical board, the chairman is a psychiatrist who confuses his role as a board official with that of a forensic examiner. That particular board insists on inappropriately-broad medical inquiries and wants actual medical records. When in receipt of these data, medical board will actually publish them as part of their minutes and the board chairman will include his medical assessments as part of these minutes. The inappropriateness and illegality of these practices are just staggering.