Part of the Break Point Special Report

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Admitting to a past depressive episode could get a physician in trouble with the Medical Licensure Board. Some of the MLB’s questions – called overly broad and discriminatory by the Department of Justice – have been amended, but many still remain problematic.

Steven H Miles, a medical faculty ethicist at the University of MN suffered a depressive episode that was successfully treated and re- solved with medication. When a medical student at his institution subsequently completed suicide, and it was rumored that the student feared mental health care-seeking because of potential adverse consequences to his career, Miles revealed his diagnosis and successful treatment to the student’s surviving classmates [1].

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He informed his clinical supervisors, who were greatly surprised, because there had never been any indication in the faculty member of anything other than exceptional capacity.

Subsequently, Miles truthfully answered questions regarding his mental health history on his Medical Licensure Board (MLB) renewal application, giving his diagnosis, contacts for his treating physician and his history of successful treatment.

The MLB board then demanded copies of all of Miles’ psychiatrist’s medical notes and records. Miles and his treating psychiatrist did not comply with the demand, and both were then threatened by the MLB with licensure action.

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Miles spent many thousands of dollars on legal fees attempting to negotiate with the MLB. He finally fired his attorney for being too docile, and subsequently reported his treatment at the hands of the MLB and the wording of the licensure questions to the Department of Justice on his own behalf. The DOJ issued an opinion letter that the licensure questions were overly broad and discriminatory under the Americans with Disability Act ADA towards an individual with a cognizable disability.

The MLB ignored the letter until a second, stronger opinion letter was issued by the DOJ. After a frank discussion with the MLB about the potential consequences of ignoring a DOJ opinion, the threats of licensure actions were withdrawn and the faculty member and his psychiatrist’s licenses were no longer under threat [2].

The questions on the MLB application in that state were subsequently changed so as to be in compliance with the ADA. This reversal was not widely publicized, although it was discussed at the Federation of State Medical Boards (FSMB) and other industry settings, as had been a similar 1993 case in which the New Jersey Medical and Dental Society successfully sued the New Jersey State Medical Board over similar issues [3].

Several state MLB application questions were amended following the above case and the Jacobs decision. However, at least five published studies subsequent to these cases have demonstrated that questions are still being asked of physicians that would likely be deemed impermissible as discriminatory under the ADA if challenged.

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An example of a probably impermissible question would be one that does not limit questions about mental health to conditions that CURRENTLY impair the ability of the physician to practice safely. So for example, a question such as “Have you ever been treated or hospitalized for a mental illness” would be overly broad and discriminatory, as would “Have you ever been diagnosed with a mental illness,” un- less coupled with a clarifier regarding current impairment.

It has been recently publicized on Medscape and numerous other publications that threats of licensure investigation, including those resulting from resistance to poorly tailored interventions by physician health programs (especially those that refer selectively to expensive for-profit rehabilitation facilities) can be devastating psychologically, financially, and professionally to physicians [4,5]. I am trying to determine how a physician who has a common, easily treatable mental health diagnosis that has never in any way been noticed by colleagues or caused any detriment to patient care or hospital or community citizenship participation should handle questions that are not only highly invasive of privacy (which intrusion would never be inflicted on a non physician), but also blatantly impermissible under federal law.

I am working with a team of medical and legal faculty (and some who are both) to address this issue. It would be helpful to know how many EPM readers have been faced with this conundrum. It would be VERY helpful if readers who are currently applying for licensure/ renewal would send the questions currently being asked as well as the name of the Medical Licensure Board. If you wish to help, or are seeking advocacy, please consider joining my LinkedIn group Physician Advocacy Exchange.

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