DOJ Ready to Take Action on State Medical Boards Mental Health Questions; Your Help Needed

[StateMedicalBoardsADA]

Dear Residents and Physicians:

I am an M.D./J.D., person with a disability with lived experience of disability discrimination as a psychiatry resident, Georgetown Law Scholar, and Immediate-Past Commissioner at the American Bar Association Commission on Disability Rights.

I am pleased to announce that the U.S. Department of Justice (DOJ) Civil Rights Division’s Disability Rights Section (DRS) appears ready and willing to take action against State medical boards whose licensure applications contain mental health questions. I need your help in getting the word out and encouraging individuals who feel they have been harmed by these questions and processes within the last two years, to file complaints via [email protected].

I. Is the DOJ really interested and willing to take action?​

Senators Ron Wyden (D-OR), Jeffrey Merkley (D-OR), and Cory Booker (D-NJ) sent a letter to the DOJ on February 23, 2023, encouraging action on this issue. I met with other advocates at a listening session held by the DOJ DRS on this issue on Tuesday, April 11, and again with two DOJ DRS attorneys on Monday to follow up.

II. Which State boards are problematic?​

In my opinion (and the general opinion of others at the listening session), States with any mental health questions (not just those with questions limited to current impairments) violate Title II of the ADA under 28 C.F.R. § 35.130(b)(1)(v)), 28 C.F.R. § 35.130(b)(3)), 28 C.F.R. § 35.130(b)(6)), and/or 28 C.F.R. § 35.130(b)(8), and do not fall under the regulatory carveout in 28 C.F.R. § 35.130(h). In other words, all States save Connecticut, Hawaii, Michigan, and New York, including the other States listed as “Grade A” on the Wible and Palermini article cited by the Senators.

While my opinion is not an official position of the DOJ, it is consistent with the DOJ amicus brief cited by the Senators in their letter, which states, among other things, that “the use of mental or physical disability as a ‘red flag’ to conduct further investigation of a person for unfitness to practice medicine is precisely the sort of conclusory jump which the ADA was enacted to combat.” The Board, for example, “may inquire generally about any leaves of absence or terminations from employment in the past but may not focus the inquiry only on those leaves of absence and terminations occasioned by physical or psychiatric illnesses or conditions…. The Board may ask applicants whether there is anything that would currently impair their ability to carry out the duties and responsibilities of a physician.”

III. What you can do to help​

See if you can think of ways to get the word out to anyone who may have been harmed by these questions and processes within the past two years, to encourage them to file complaints at [email protected]. I am, of course, available to talk to anyone with any questions via Zoom, phone, text, or email.

Thank you very much for any help you might be able to provide.

Sincerely,

Nick

Nicholas D. Lawson, M.D., J.D.
Georgetown Law Scholar; Adjunct Professor, Fordham University
Immediate-Past Commissioner, American Bar Association Commission on Disability Rights
Pronouns: He/Him/His
Email: [email protected], [email protected]
Phone: (646) 246-6251

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[littlefred]

You are doing great work Dr. Lawson!

I remember reading that some doctors have been able to go about not answering these questions and still be members of the board.

Mental health and substance use are treated as separate on most state boards, does this also include removal of substance use related questions?

 

[StateMedicalBoardsADA]

Substance use-related questions are trickier in part because substance use disorders are not as protected under the ADA. It is harder to say about ADA coverage, but I believe for many reasons, that such questions constitute very poor public policy.

 

[Shikima]

Substance use-related questions are trickier in part because substance use disorders are not as protected under the ADA. It is harder to say about ADA coverage, but I believe for many reasons, that such questions constitute very poor public policy.

Perhaps this could be an opportunity to redirect state boards on how they ask about substance use as related to public policy and licensure?

 

[StateMedicalBoardsADA]

My impression is that it's pretty hard to "redirect" state boards, and physician health programs (PHPs), associated industries (i.e. employee assistance programs, testing companies) that benefit from such policies, and Congress on these issues. There is growing recognition in some quarters at least that such policies related to substance use disorders (SUDs) are racist, and there is a reason why Senator Cory Booker, an ally in the effort to end the war on drugs in the workplace, signed onto that letter. I would like to see SUDs better covered under the ADA. Unfortunately, there has been growing support for behavioral health policies that emphasize "awareness," identification, screening, surveillance, encouraged/coerced treatment for behavioral health conditions in general, and that needs to change.

 

[Merovinge]

This is life saving work counselor/doctor Lawson so thank you for what you are doing. While I don't know anyone materially harmed by this in the past two years please let us know if there is anything else we can do. It feels sad that we need to say out loud Physician Lives Matter.

Separately, I completely understand why you are taking on mental health first, anecdotally the substance use disorder questions are just as, if not more so important due to the way they ensure physicians do not get treatment for these life threatening problems. I believe they are significant contributor to our high suicide rates (that are extremely high when accounting for finances).

 

[StateMedicalBoardsADA]

That is very nice of you to say. I get almost no compensation for any of my work.

I am not sure how I feel about justifications for civil rights public policies that use health-related arguments in general. There is, for example, evidence contradicting what you say about physician suicide rates. See, e.g., Gordon Y. Ye, Judy E. Davidson, Kristen Kim & Sidney Zisook, Physician Death by Suicide in the United States: 2012—2016, 134 J. Psychiatric Res. 158, 158 (2021) (“No significant difference was found in suicide incidence between gender and age-adjusted physicians vs. non-physicians”).

Better policy arguments in general, I think, are based in respect for individual choices and self-determination, which is the primary concern of disability movements and perspectives in general. See, e.g., Consortium for Constituents with Disabilities, CONSORTIUM FOR CONSTITUENTS WITH DISABILITIES (last visited Mar. 29, 2023) (“The Consortium for Constituents with Disabilities (CCD) is the largest coalition of national organizations working together to advocate for federal public policy that ensures the self-determination, independence, empowerment, integration and inclusion of children and adults with disabilities in all aspects of society.”)

I guess in my view, arguments for public policies that invoke "treatment," suicide rates, and safety risks always end up hurting people with behavioral health conditions and disabilities and lead to paternalistic discrimination.

 

[Shikima]

This is life saving work counselor/doctor Lawson so thank you for what you are doing. While I don't know anyone materially harmed by this in the past two years please let us know if there is anything else we can do. It feels sad that we need to say out loud Physician Lives Matter.

Separately, I completely understand why you are taking on mental health first, anecdotally the substance use disorder questions are just as, if not more so important due to the way they ensure physicians do not get treatment for these life threatening problems. I believe they are significant contributor to our high suicide rates (that are extremely high when accounting for finances).

I wonder if we can get toxicology reports from all physician suicides. This would help to understand this point better.

 

[Merovinge]

That is very nice of you to say. I get almost no compensation for any of my work.

I am not sure how I feel about justifications for civil rights public policies that use health-related arguments in general. There is, for example, evidence contradicting what you say about physician suicide rates. See, e.g., Gordon Y. Ye, Judy E. Davidson, Kristen Kim & Sidney Zisook, Physician Death by Suicide in the United States: 2012—2016, 134 J. Psychiatric Res. 158, 158 (2021) (“No significant difference was found in suicide incidence between gender and age-adjusted physicians vs. non-physicians”).

Better policy arguments in general, I think, are based in respect for individual choices and self-determination, which is the primary concern of disability movements and perspectives in general. See, e.g., Consortium for Constituents with Disabilities, CONSORTIUM FOR CONSTITUENTS WITH DISABILITIES (last visited Mar. 29, 2023) (“The Consortium for Constituents with Disabilities (CCD) is the largest coalition of national organizations working together to advocate for federal public policy that ensures the self-determination, independence, empowerment, integration and inclusion of children and adults with disabilities in all aspects of society.”)

I guess in my view, arguments for public policies that invoke "treatment," suicide rates, and safety risks always end up hurting people with behavioral health conditions and disabilities and lead to paternalistic discrimination.

Are you able to compare and contrast that to studies such as those below. I don't know the first lick about crafting policy, arguments for them, or the impact of them and happily defer that to experts such as yourself. I do know a number of physicians who do not get the SUD treatment they need because of concerns related to medical boards and how this materially impacts their lives, their family's lives, and unfortunately at times, patient lives.

Physicians Experience Highest Suicide Rate of Any Profession

US physicians have the highest suicide rate of any profession. The number of physician suicides is more than twice that of the general population, new research shows.

www.medscape.com

 

[StateMedicalBoardsADA]

When I put my energy into evaluating statistics about suicide, it is usually to combat arguments made by those supporting coercive and other interventions that violate privacy, offend dignity, and are not effective in reducing suicide. As I am sure you know, many paternalistic organizations like the National Alliance on Mental Illness (NAMI), an organization representing the interests of parents and family members of individuals with mental illnesses that is heavily funded by pharmaceutical companies, and the Treatment Advocacy Center, often cite elevated suicide rates as reasons to civilly commit individuals with behavioral health conditions and disabilities and curtail their rights.