Do State Medical Board Applications Violate the Americans With Disabilities Act?

1. Do State Medical Board Applications Violate the Americans With Disabilities Act? Robin Schroeder, MD UMDNJ-New Jersey Medical School April 28, 2011 schroers@umdnj.edu

2. FSPHP Presenter Disclosure Slide “Do State Medical Board Application Violate the Americans with Disabilities Act?” Robin S. Schroeder, MD Chantal Brazeau, MD Freda Zackin, Esq have Nothing To Disclose FSPHP Annual Conference and Meeting Seattle, Washington April 26-29, 2011

3. Reference Schroeder R, Brazeau CMLR, Zackin F, Rovi S, Dickey J, Johnson MS, Keller SE. Do State Medical Board Applications Violate the Americans With Disabilities Act?. Academic Medicine. 2009;84(6):776-781

4. ProjectTeam Robin Schroeder, MD Chantal Brazeau, MD Freda Zackin, Esq Sue Rovi, PhD Mark S. Johnson, MD, MPH Steven Keller, PhD John Dickey, MS ‘08

5. Project History • As student health medical director, I saw many medical and other health professional students with depression and other psychiatric diagnoses • Students reluctant to engage in treatment • fear of “creating a record” • worry about applications/credentialing for licensing boards/hospitals/residency

6. Project History What questions are medical licensing applications actually asking of new applicants? Are these questions permissible from the ADA perspective?

7. Background-Medical Board • The Federation of State Medical Boards (FSMB) provides leadership for the state boards in the area of medical regulation • Each state charges its medical board with • protection of the public from the unprofessional, improper, unlawful or incompetent practice of medicine. (In accordance with the Medical Practice Act of each individual state)

8. Background-Physician Rights • Protection in accordance with the Americans with Disabilities Act (1990) • Privacy of medical records (HIPAA)

9. ADA: subtitle A of Title II • Protects qualified individuals with disabilities from discrimination on the basis of disability in the services, programs or activities of all State and local governments (a public entity)

10. Background-Physician Needs To seek and receive appropriate medical care • Mental health • Physical health • Substance use …without fear of unnecessary adverse consequence • Access to Physician Health Programs

11. Hypotheses • Medical licensing applications will contain questions about physical and mental health, and substance use • Questions on medical licensing applications will be consistent with the ADA

12. Methods • Assembled team members • Obtained the medical licensing applications from all states and DC • Extracted questions (also releases, affidavits, reference forms, etc.) from each state application about: • physical health • mental health • substance use

13. Methods • Attorney reviewed and classified extracted questions based on the ADA and available case law • Only one case involving physician licensing had been decided (New Jersey, 1993) • All other cases involve bar or judiciary application questions (Texas, Virginia, Florida, Rhode Island, Illinois)

14. Methods-Classification and Definition • Permissible= Generally recognized as consistent with ADA • Likely Permissible=Upheld in at least one jurisdiction • Likely Impermissible=Struck down in at least one jurisdiction • Impermissible=Clearly inconsistent with ADA

15. Licensing Application Questions about Physician Health

16. Question Classification Across All States

17. Number of States with Likely Impermissible or Impermissible Questions

18. Permissible Do you have a physical or mental condition that currently impairs your ability to practice your profession? • addresses current fitness to perform the essential functions of a physician

19. Permissible Are you currently addicted to or dependent upon narcotics, intoxicating liquors, or other substances? • Questions concerning current or very recent substance use or illegal activity

20. Permissible Have you ever been diagnosed as having or have you ever been treated for pedophilia, exhibitionism, voyeurism or other sexual behavior disorders? -Specifically excluded from ADA protection

21. Likely Permissible Upheld in at least one jurisdiction and consistent with: Subcategory 1 Have you in the last ten years or since the age of 18 been treated for or hospitalized for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder?

22. Courts upheld questions that would otherwise be impermissible because experts determined that these are serious disorders and are likely to interfere with an applicant’s current ability to practice. Applicants v. Texas State Board of Law Examiners

23. Likely Permissible Upheld in at least one jurisdiction and consistent with: Subcategory 2 (to references) Do you have knowledge of any drug or alcohol dependency or abuse by the applicant during the previous ten years or know of any emotional, mental, behavioral or nervous affliction?

24. Would have been impermissible if asked of the applicant directly, but was upheld because the question was directed to an applicant’s reference which the court determined did not impose additional burden to the applicant McCready v. Illinois Board of Admissions to the Bar

25. Likely Impermissible Struck down in at least one jurisdiction and consistent with one of the following subcategories: Subcategory 1: Within the ten year period prior to the date of this application, have you ever received treatment of emotional, nervous or mental disorder?

26. Courts have struck down questions that ask about information that is too remote in time to evaluate an applicant’s current fitness to practice Underwood v. Plano

27. Likely Impermissible Subcategory 2: Have you within the past five years, been treated or counseled for any mental, emotional, or nervous disorders?

28. Courts have struck down questions that are so broad in scope that they may elicit information about illnesses or treatment which may not be relevant to the applicant’s current fitness to practice (grief counseling, eating disorders, marital counseling) Clark v. Virginia Board of Bar Examiners

29. Impermissible Clearly inconsistent with the ADA, struck down in more than one jurisidiction, or consistent with one of the subcategories: Subcategory 1: Have you ever sought treatment for a nervous, mental or emotional condition or ever been diagnosed as having such a condition or ever taken any psychotropic drugs?

30. Questions about past diagnoses, treatment, or physical or mental conditions that specify no time limitation or are not necessarily related to the applicant’s fitness to perform the essential functions of a physician infringe rights protected under the ADA Ellen S v. Florida Board of Bar Examiners

31. Impermissible Subcategory 2: State whether you have, since attaining the age of 18, been adjudged an incompetent…or been committed to or been a patient in any institution for the care of persons suffering from mental or nervous disorders or drug addiction, drug abuse, or alcoholism

32. Questions that elicit information about an applicant’s record of disability or “status” rather than current or future ability to perform Campbell v. Greisberger

33. Impermissible Subcategory 3: Have you ever suffered or been treated for any mental illness or psychiatric problems? If the applicant answers in the affirmative, he or she is required to have any “treating physicians…submit directly to the board office, a summary of the diagnosis, treatment and prognosis relating to any of the above”

34. Questions related to past disabilities that trigger additional burdens, such as submission of additional documents, medical records or personal appearances, that are not required of other applicants who have no record of disability Medical Society of NJ v. Jacobs (and Board of Medical Examiners)

35. What about this one? Within the last five years, have you undergone a cardiac bypass procedure? (Colorado)

36. Discussion There are two major areas of concern for state medical licensing applications. • The legality of the application questions 2. The intrusion on physician privacy by the application questions and the potential effect on physician health seeking behavior The focus of this study was the legal issues.

37. Discussion We were surprised by the many “Likely Impermissible” and “Impermissible” questions on licensing applications 15 years after implementation of the ADA.

38. Discussion • In a policy statement at the time, the AMA states that it will: … “seek clarification of the application of the Americans with Disabilities Act to the actions of medical licensing and medical specialty boards… And, until this is clarified, will encourage the ABMS and FSMB …to advise physicians of the rationale behind inquiries on mental illness, substance abuse or physical disabilities in [application] materials…[if asked]. (H-275.945)

39. Discussion • State licensing applications need to eliminate ADA inconsistent questions • States must review their medical licensing applications to focus on the current competence of physicians

40. Commentary 1: Brief Summary Granting Medical Licensure, Honoring the Americans With Disabilities Act, and Protecting the Public: Can We Do All Three? Steven I. Altchuler, PhD, MD Supports collaboration of the legal and medical systems to respect the autonomy of the licensee, while protecting the public.

41. Commentary 2: Brief Summary Impaired Physicians and the New Politics of Accountability Daniel M. Fox, PhD Discusses the behavior of the boards and their efforts to improve the accountability of members of the profession, and as a result, the quality of their services

42. Conclusion • Most medical licensing applications DO contain questions about physical and mental health, and substance use. • Many questions on medical licensing applications are NOT consistent with the ADA

43. Letter to the EditorThomas E. Schacht, PsyD, ABPP • Criticism of physician credentialing organizations that require physicians to consent to release of any information deemed relevant (personal health/mental health) by the organization • Suggests the Mass. Phys. Credentialing Initiative as model for credentialing that respects physician privacy

44. Beyond Legality • We do not know the impact of these application questions on physicians, or how they actually respond to them: • Not seeking help • Minimize diagnoses • Not admitting to a diagnosis or to seeking help (lying) • Treat self • Treatment by physician “friend”

45. Future Research Does the presence, or perceived presence, of these questions on licensing applications affect physician health seeking behavior? AND/OR Do physician applicants perceive that they are forced to lie to avoid complex and potentially embarrassing inquiries or non-licensure?

46. Recommendation The assessment of a physician’s current competence would best protect the public and, therefore, should be the focus of the state medical licensing board inquiry on applications.

47. If you respond ‘yes’ to any question, please attach a complete explanation to your application. Failure to disclosepast history may be grounds for disciplinary sanctions.WHEN IN DOUBT, DISCLOSE AND EXPLAIN.

48. 44. Have you used or are you currently using any chemical substance(s), legal or illegal, thatin any way impaired or limited, or is currently impairing or limiting, your ability to practicemedicine in a safe and competent manner?

49. 45. Have you ever been voluntarily or involuntarily committed or confined to any facility formental health care?

50. 46. Have you ever been diagnosed with, treated for, or do you currently have (check the appropriate condition): Bipolar Disorder Depressive Neurosis KleptomaniaHypomania Any Dissociative Disorder PyromaniaSchizophrenia Any Psychotic Disorder DeliriumMajor Depression Any Organic Mental Disorder Paranoia Seasonal Affective Disorder