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While I note the author's concerns that programs in the FSPHP model may not refer to the strongest regional referrals centers, I think that there are even more basic objections.
When referral sources to PHP's were actually measured, the majority came from third parties, which were almost always employers. It is important to note that a plurality of US physicians are employed. The second largest referral sources were from state boards themselves.
An employer who refers an employed physician to a PHP is constrained under Title I and Title V of the Americans with Disabilities Act (ADA). The employer's duty to comply with these titles of ADA is non-delegable. So, an employer may not refer a currently employed physician for a PHP evaluation unless the mandate is based on a reasonable suspicion formed by observation or reliable report of objective evidence that a medical condition interferes with job performance so great that ignoring it would be inconsistent with business necessity or if the observation leads to a reasonable suspicion that an employee poses a direct threat to himself or others. In the event of an employee refusal to undergo such a fitness for duty evaluation, the employer is constrained to take only those actions that would have been taken on the grounds of performance alone. The employer (not the employee or an organization funded by all physician license surcharges) pays for this evaluation. The information transmitted to the employer is only that relevant to a finding of direct threat or to a current impairment that interferes with current job performance. In the event that an employee requested a reasonable accommodation, the information is limited to that required in order to engage in an interactive process with the employer about an accommodation. Treatment of a medical condition resulting in a current impairment is NEVER required under ADA as a condition of employment.
An employer who threatens an employed physician with a report to a medical board if they do not undergo a fitness for duty evaluation violates Title V of the ADA.
Secondary evaluations, e.g. at regional referral centers, are the financial responsibility of the employer. NO EXCEPTIONS.
In the case of board referrals, ADA Title II applies to all US medical boards. Like employers, licensing boards cannot delegate responsibility to a PHP for ADA compliance. Licensing boards may not legally generate referrals by inspection of answers to license application or renewal questions that contain elements inquiring about anything other than CURRENT IMPAIRMENT. Licensing boards may not delegate financial responsibility to licensed physicians to pay for board-ordered fitness for duty evaluations as a condition of licensure. Licensing boards may not require treatment as a condition of licensure. These are ADA Title II and Title V violations.
Inappropriate medical board inquiries were addressed in New Jersey Medical Society v Rosen in 1993. The USDOJ amicus brief basically has a very modern analysis of the sort of questions that are not permitted to be asked by licensing boards. However, with the exception of a small number of states, these illegal questions are still used by the overwhelming majority of state medical licensing boards and little has changed since 1993.
ADA Title V complaints regarding coercion, retaliation, or interference in the face of a physician's insistence on exercising civil rights under ADA have not yet made it into the courts as best I can tell.
ADA Title II complaints about medical boards have made it as far as SCOTUS and the findings have been for the plaintiff. Hason v. Medical Board of California 2002 was granted certiorari to SCOTUS and California elected to cease defense of the case.
Medical boards have used the tactic of declaring a physician guilty of unprofessional conduct if they are found to have a medical condition with a past, current, or future potential to pose a direct threat and then offering a PHP referral as a diversion from board sanction. This practice certainly looks to violate at least Title V of ADA. But if it is not found to violate ADA, then a board may insist on treatment as a condition of licensure under a diversion from discipline agreement. Exactly this question, framed this way, has not seen a federal courtroom to my knowledge.
The point is that ADA violations under Title I, II, and V are widespread and there is a gross imbalance between the regularity with which these violations occur and the rate at which legal claims are brought under ADA. As a general rule, medical boards do not make access to ADA/504 Coordinators available to address agency resolution of ADA complaints as required by 28 USC 35.107.
The basic problem is that the FSPHP model is written as if the ADA does not apply to physicians. The law, and the case law, says something quite different.
I agree that a physician who seeks treatment should do this at the best facilities that they can practically use and should apply their health insurance coverage in receiving this service. The notion that physicians face a Hobson's Choice of either paying exorbitant fees out of pocket for a coerced evaluation and/or course of treatment or cease practice in their chosen profession and source of livelihood is not really less onerous when the quality of the institution performing the coerced evaluation is generally better by some metrics. The problem is the coercion.
Coercion, or the prospect of coercion is what causes physicians to recoil at seeking or receiving any sort of mental health treatment. It also causes physicians to not request reasonable accommodations at work when these would serve them and not place an undue burden on an employer.
Certain employees regulated by DOT, NRC, and the DOD have lessened (NOT ABSENT) protections under ADA. This is NOT true for physicians as a group. There is no such thing as a consensus list of bona fide occupational medical qualifications for working as a physician. (By way of contrast, there are universally-applied medical standards for visual acuity and visual field applied to getting a driver license.) This is likely for reasons that are as much practical limitations as they are legal. The taxonomy of medical practice is so complex that it is difficult to imagine meaningful medical qualification prerequisites that could be universally-applied BEFORE the actual performance of a physician can be assessed. Or the idea of creating a long list of special licenses for different specialties could be entertained which would pose an enormous regulatory burden on the states and which would be redundant in the face of the complex training and certification pathways that already exist in the private sector.
Since 1990, the state medical boards have had an accepted legal approach to address current physician impairments. For nearly three decades, they have been able to use the legal safe harbor of fitness for duty examinations that seek to determine the presence of a direct threat to others caused by a current medical impairment. In doing this, the medical board personnel are regulators and cannot serve the function of forensic examiners. The medical boards have no need for or right to a comprehensive set of a physician's medical records. This is explicitly prohibited by ADA Title II and no other industry (with the possible rare exception of those regulated by the US Department of Transportation in EXTREME instances) have carte blanche access to medical records that are routinely acquired by medical boards.
The point is that medical boards and physicians can get along quite nicely without FSPHP or any of its state affiliates. A perfectly adequate process already exists that is compliant with federal law under the ADA. True physician peer assistance need contain no element of coercion or at the very most could easily be limited to ADA-compliant Employee Assistance Program formats. Medical boards, which are not actively supervised or answerable to voters, are supposed to be the experts and are completely capable or ordering, and paying for, forensic medical examinations of physicians in the way that the ADA has permitted for decades. The notion that medical boards must rely on a "bullpen" of forensic physicians to lead them on all matters related to physician fitness for licensure is at least questionable. But when this bullpen is comprised of persons who have an interest in maintaining a system in which they receive a steady stream of clients who must undergo coerced far-ranging evaluations and years of treatment, there is the reality of abuse.
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