As America realized it was in the middle of an opioid crisis in the first decades of the 21st Century, many sought solutions, and solutions tend to require the identification of the cause of a problem. Finding the cause of this problem, however, had (and has) forensic implications. In forensics, finding the cause of a problem generally involves blame. And in this matter, not just any kind of blame. Prescribers – primarily pain specialists, have been serving prison sentences. It is reasonable to believe that some prescribers can and do prescribe opioids and other controlled substances without consideration for the welfare or even lives of their patients – and for big profits. On-going investigations, however, have turned over stone after stone, eventually determining that it has not been prescribers by and large, but other entities, perhaps in concert which have shown disregard for human life in the face of HUGE profits to be made. – Christian Wolff
Supreme Court sides with doctors convicted of overprescribing opioids
The Supreme Court on Monday made it more difficult for the government to prosecute doctors who overprescribe drugs, unanimously setting aside the convictions of two physicians accused of operating opioid “pill mills.”
Under federal law, licensed physicians are permitted to dispense controlled substances for “legitimate medical purpose” as part of their professional practice. The justices were deciding how to distinguish valid medical conduct from illegal overprescription of highly addictive drugs like opioids that have claimed the lives of more than 500,000 people in the United States since 2016.
The court held that the government must prove beyond a reasonable doubt that the doctor knew or intended to prescribe the drugs in an unauthorized manner.
“We normally would not view such dispensations as inherently illegitimate; we expect, and indeed usually want, doctors to prescribe the medications that their patients need,” Justice Stephen G. Breyer wrote for the court.
In such prosecutions, he continued, “it is the fact that the doctor issued an unauthorized prescription that renders his or her conduct wrongful, not the fact of the dispensation itself.”
The combined cases involve two doctors — Xiulu Ruan and Shakeel Kahn — who were convicted at trial of unlawfully dispensing and distributing drugs and sentenced to more than 20 years in prison. Ruan operated a medical clinic in Alabama and a pharmacy, which made more than $4 million during a four-year period and dispensed nearly 300,000 prescriptions, including many for opioids.
Kahn practiced in Arizona and Wyoming, operating mostly on a cash-only basis and accepting property as payment, including firearms.
The court rejected the government’s request to affirm the convictions and its argument that requiring prosecutors to prove that a doctor knowingly or intentionally acted not as authorized would allow bad actors to escape liability. The justices unanimously returned the physicians’ convictions to the lower courts for further review.
Justice Samuel A. Alito Jr. agreed with his colleagues to return the cases to the lower courts but would have applied a different standard and held that a doctor is acting professionally when the physician writes prescriptions “in good faith.” Alito wrote a concurring opinionto say that the court’s “radical new course” may cause “confusion and disruption.”
The court’s alternate approach, Alito wrote, does not answer the question of whether there is a “good-faith defense” in the prosecutions of physicians.
“How many other affirmative defenses might warrant similar treatment, the Court does not say. It leaves prosecutors, defense attorneys, and the lower courts in the dark. I cannot accept this cavalier treatment of an important question,” wrote Alito, who was joined by Justices Clarence Thomas and Amy Coney Barrett.
The Justice Department declined to comment on the ruling. Former prosecutors said the decision would change the way the government assesses health-care fraud cases by requiring the Justice Department to prove beyond a reasonable doubt that a doctor knew what he or she was doing was wrong at the time the prescription was issued.
“This will have a chilling effect on how the DOJ assesses what cases to prosecute,” Sean B. O’Connell, a former federal prosecutor with health-care fraud experience said in a statement. “The DOJ has aggressively pursued health care fraud in a post-pandemic world and each of these investigations will have to be re-evaluated to determine if the DOJ has enough evidence to meet” the court’s new standard.
The cases are Ruan v. United States and Kahn v. United States
The Health Care Quality Improvement Act of 1986: What Every Surgeon Needs to Know
by Gharagozloo F*, Poston R and Gruessner R Institute for Advanced Thoracic Surgery, USA
Published 27 December, 2022
Editorial
In the 1980’s a number of bills were introduced in the United States Congress which were designed to address “the medical malpractice crisis”. At that time, medical malpractice cases were increasing in number, and the size of medical malpractice claims were becoming larger. Although the medical malpractice crisis has been disputed by several observers, clearly, in the 1980’s the increasing number of medical malpractice cases posed a significant concern to the Lawmakers. The increase in the number and the size of malpractice claims has been attributed to unrealistic public expectations, physician overestimation of expected results, expanded tort liability, and a lack of meaningful governmental oversight of “bad actors. At the same time, members of Congress were concerned about the increasing number of lawsuits which were brought against peer review groups by physicians whose privileges had been restricted at hospitals, medical societies, and state medical licensing boards. The Congress perceived that the lawsuits against peer review groups had a “chilling effect” on the existentially important peer review process and its role in self-policing of the medical profession.
The response of the Congress to these concerns was the passage of Health Care Quality Improvement Act of 1986 (HCQIA) which was signed into effect on November 14th, 1986, and became fully operational on September 1st, 1990. HCQIA was designed to protect the health and safety of the public by 1) enhancing the Peer Review process through protection for peer review members from lawsuits, and 2) providing a national repository for reported information regarding medical malpractice payments and adverse actions involving physicians, which among other things, would monitor the movement of incompetent or unprofessional physicians.
HCQIA
HCQIA is comprised of two parts
Part A: Immunity for Professional Review Activity:
HCQIA provides peer review members, and those individuals who provide information to the peer review committee, with qualified immunity from private suits under both state and federal laws. In order to provide immunity, HCQIA stipulates compliance with the Act’s requirements which are outlined in section 11112 (a) and are:
1.Peer review action must have been undertaken in the reasonable belief that the action would further the quality of healthcare 2.Peer review action must have been undertaken after reasonable efforts to obtain the facts 3.Peer review action is in compliance with adequate due process requirements for notice, and an impartial fair hearing 4.Peer review action must have been undertaken with the “reasonable” belief that the facts warranted the action.
It is important to emphasize that the intent of HCQIA was to encourage self-policing by the medical profession by protecting physicians who participated as members of the peer review committee, or as witnesses in such proceedings, from retaliatory lawsuits. As a result, the immunity protection provided by HCQIA is broad and only requires adherence to “fundamental fairness” for the process to satisfy the Act.
In order for a physician to challenge Peer Review, Congress adopted the “preponderance of evidence” standard for the peer review proceedings.
HCQIA does not provide immunity to hospitals outside the peer review process in terms of being named as codefendants in a malpractice lawsuit, or liability for negligence in granting of staff privileges.
Part B: Reporting to the National Practitioner Data Bank:
HCQIA stipulated that as of September 1st, 1990, adverse actions taken against physicians in terms of professional review actions and curtailment of clinical privileges for greater than 30 days, and malpractice payments, were to be reported to the National Practitioner Data Bank (NPDB).
In order to further the goal of strengthening the confidential peer review process, HCQIA does not provide the public with access to NPDB. However, HCQIA grants attorneys access to information contained in NPDB after two elements are met: 1. A medical malpractice action or claim is filed against both hospital and the practitioner, and 2. Evidence is produced at the hospital failed to request in NPDB information on the practitioner as required by law.
General and Present-Day Concerns
A 35-year fast forward since the enactment of HCQIA reveals unintendedyetprofessionallythreateningconsequencesofthe law. Over time it has become apparent that HCQIA requires some amendments.
The original purpose of HCQIA was to improve the health and safety of the public by encouraging reporting of incompetence and unprofessional behavior by physicians. To achieve this goal, peer review groups are granted qualified immunity from damages and suits brought by physicians under federal and state law. The act is further facilitated by the establishment of NPDB. However, since its inception, HCQIA has been the subject of controversy.
HCQIA became law as the medical system was undergoing a significant organizational change. In the years which preceded the Congressional hearings in 1986, most physicians were private practitionerswhopracticedinhospitalsbyvirtueofholding “privileges” at that hospital. In the 1980’s, there was effectively an organizational and administrative wall between Medical Staff Office Governance and the Hospital Administration. With this level of separation in the business interests of the hospital, from the patient care interests of the medical staff, the Peer Review process was a time- honored method of physician self-policing. Therefore, protecting the sanctity of the Peer Review and providing an even playing field was paramount for the health and safety of the public.
Fast forward to the drastic changes in the health care system since 1986. In 2022, healthcare has been consolidated into increasingly larger Hospital Organizations, payment for health care services has become consolidated under more powerful governmental and private insurance carriers, and the majority of physicians are now “employed”. These changes have given rise to concerns that the HCQIA may have become antiquated and used unfairly by some hospitals to effectively engage in anti-competitive behavior against opposing physicians by using “Sham Peer Review”. Although “Sham Peer Review” remains a matter of interpretation, the mere concern about this concept has taken the legitimacy of Peer Review, the cornerstone of self-policing of physicians, back to 1986.
Nowadays, Peer Review committee members are no longer independent. Members are typically hospital-employed physicians that have signed an agreement to make decisions (including those about peer review) that comport with expectations, metrics and targets of the administration of the healthcare system. At times, this requires members to accept the political or strategic goals of a CEO who may want to exploit Sham Peer Review for the hospital administration’s purposes. A CEO that selects this route becomes immune under HCQIA from any lawsuits by a terminated physician merely by labeling those actions “Peer Review”. Most hospital bylaws grant the hospital the right to remove members that are unwilling to comply with such capricious decisions. While the original intent of immunity was to protect the judgments of physician reviewers about the medical competency of their peers, it has now been also coopted to protect political decisions such as in terminating “difficult” physicians.
In addition, most hospital-appointed Peer Review committee members lack specific training and are not experts in that specific field. Hospitals shy away from true and fair Peer Review by mutually agreed-upon national experts because they do not necessarily align with the goals of hospital administration. However, the judgments of hospital-appointed members are at significant risk of being biased by personal or professional ties and administrative expectations. These “unfair” issues add up to investigations that are often incompetently performed with tremendous adverse consequences to the practitioner.
Currently, the remedy for an accused physician facing grave professionalconsequencesastheresultofaviolationofhis constitutional rights is to file a lawsuit against perceived Sham Peer Review. But the hospital has a very potent ace-in-the-hole. Its legally guaranteed immunity as per HCQIA allows hospitals to keep their actions confidential and information privileged from legal discovery. It also allows hospital administrators to officially distance themselves from the accused physician for several reasons and from a process they know was corrupt or fear of being blamed for a negative outcome. Although legal claims for retaliatory or “Sham” Peer Review, have had little success, a recent California Supreme Court decision may have lasting ramifications. In Bonni v. St Joseph Health System, California Medical Association filed an amicus curiae brief which sought to ensure protection for physicians on both sides of the Peer Review process and to preserve the maintenance of high professional standards and the protection of patient welfare. The brief sought to provide the court with a practical, realistic depiction of the problems with the Peer Review system and presented a solution that protected physicians due process rights while also insulating medical staffs and medical executive committees from harassing frivolous lawsuits. In its decision the California Supreme Court concluded that peer review is a protected activity, but those protections are limited to speech and petitioning activity taken in conjunction with peer review. The court proposed a balanced position stating that while protection extends to statements made in the peer review proceeding and to the required reporting of any decision to the medical board, the protection does not apply to final disciplinary decisions. The court reasoned that such disciplinary decisions are disconnected from speech and petitioning activities thereby giving physicians who claim to be victims of “Sham Peer Review” their day in court.
Some authors have proposed that the notion of fairness in the medical community will never be achieved unless the provisions of HCQIA are amended to respond to the changing times. Seven areas of change have been proposed: 1) the burden of proof should be placed on the accusers, 2) “absolute immunity” should be withdrawn from the members of the peer review committee who are proven to have acted in malice, for anticompetitive purpose, or engaged in fraudulent behavior, 3) standardize guidelines from the literature and relevant clinical practice should be mandated to be used by the peer review committees, 4) peer review committees should be comprised of physicians in the same specialty as the physician undergoing review. 5) “Due Process” as is mandated under the US Constitution and is used in other legal proceedings, and the presumption of innocence until proven guilty, should be afforded to every physician undergoing peer review 6) physicians under review should have the right for representation by an attorney in all stages of the peer review process, 7) state medical boards should be mandated to review all hospital adverse actions toward physicians, and that adverse action only be reported after the state board proceedings.
In summary, improving HCQIA through appropriate and present-day amendments as outlined will benefit not only physicians and hospitals but quality and safety standards in all aspects of healthcare.
Conclusion
The Peer-Review Process is a fundamental aspect of medicine. It allows the profession to maintain the highest standards of quality and professional behavior and insures the highest level of quality and safety for patients. Most physicians are not familiar with the provisions of HCQIA, and unfortunately only become aware of the law and its provisions if they become a subject of peer review. Given the existential nature of the reporting of adverse actions, it is crucial for every physician to be familiar with HCQUA and work to improve it with the goal of fairness for all physicians, and the highest standards of quality for the profession. The time has come to correct HCQIA deficiencies and loopholes and make peer review truly objective and fair as the original intention was.
An attorney just notified me of this letter submitted to the Department of Justice citing my 2019 journal article documenting widespread mental health discrimination by medical boards. Read letter below or download original document with citations here. If you’ve ever been harmed by a medical board (or PHP), please contact Dr. Wible. You could be instrumental in ending mental health discrimination against physicians.
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Dear Attorney General Merrick Garland, Assistant Attorney General Kristen Clark, and Disability Rights Section Chief Rebecca Bond:
I write to encourage the Department of Justice (DOJ) to extend its investigations of offenses under the American Disabilities Act (ADA) to include the practices of state medical license boards. Many of these boards ask physicians about their mental health and substance use or addiction history, beyond what is necessary to fulfill the purpose of screening physicians for current, debilitating cases of mental illness and substance use or abuse. These questions both discourage many applicants and licensed physicians from receiving care that they need, and they violate Title II of the ADA, which forbids public entities from discriminating against qualified individuals on the basis of disabilities, including mental health conditions. I know that you share my goals of protecting health privacy, encouraging a robust medical workforce, promoting mental health care, and enforcing the ADA, and so I write to ask you to prioritize this concern by issuing DOJ guidance and holding state medical boards accountable.
States oversee the qualifications of their physicians as part of the power to protect the health, safety, and welfare of its citizenry, but some of the questions that many state medical boards ask of physicians on their initial licensure exams and renewals are, according to the American Psychiatric Association, the American Medical Association, and the Federation of State Medical Boards, irrelevant to assessing current ability to practice. In fact, several peer-reviewed journal articles estimate that two-thirds of state medical boards violate Title II of the ADA with personal, taxing, and unnecessarily broad questions about doctors’ psychiatric history. The repercussions are not just a matter of law, but they also inform the practices of hospitals, health plans, and malpractice insurance companies, and impact the medical well-being of physicians.
A 2019 study looked at initial medical licensing processes in all states to determine if qualified applicants who report mental illness experience discrimination and to identify the most physician-friendly states for mental health.
The authors ranked Alaska as the worst of all states when it came to invasiveness of mental health questions on initial licensing applications with 25 yes-or-no questions including:
“Have you ever been diagnosed with, treated for, or do you currently have: followed by a list of 14 mental health conditions including depression, seasonal affective disorder, and “any condition requiring chronic medical or behavioral treatment.”
The District of Columbia asks two questions, both unrestricted in time and the second “broad and subjective given that one anonymous and unsubstantiated complaint can lead to a physician [Physician Health Program] referral and undermine a doctor’s career”:
“Have you ever entered into a monitoring program for purposes of monitoring your abuse of alcohol, drugs, or other controlled substances?”
“Have you ever entered into a monitoring program for purposes of monitoring your professional behavior including recordkeeping, billing, boundaries, quality of care or any other matter related to the practice of your profession?”
Georgia’s application does not directly ask impairment or mental health questions, but requires three separate peer references to answer whether the physician has or had in the past any mental or physical illnesses or personal problems that interfere with their medical practice. “Personal” problems are open to interpretation and there’s no indication that any assertions contained in these references must be substantiated by evidence.
These kinds of questions go far beyond conditions that could impair qualified individuals and may require comprehensive disclosure of one’s medical and professional history.
Even though physicians face an inordinate amount of stress—their burnout rate is 50%, twice the general working population’s level—many avoid seeking mental health support due in part to these questions. In one survey of women physicians experiencing mental health difficulties, 44% of respondents who did not seek treatment cited licensure questions as a reason why. In another survey of surgeons who experienced suicidal thoughts over the previous year, 60% said the questions would make them more reluctant to seek help. Physicians have had one of the highest suicide rates of any profession, and the pandemic has exacerbated suicide risk factors. Troublingly, there have also been reports of unwanted mental health support or assessments as physicians have reported retaliatory inquiries into physical, mental, or emotional health and referrals to impaired practitioner programs.
The DOJ oversees professional licensing bodies and has previously intervened when those bodies violated Title II of the ADA. For example, in 2014, the DOJ advised the Vermont Human Rights Commission about the unlawful nature of questions by state law boards about mental health history. Later that year, the DOJ investigated the Louisiana state law board for questions that violated Title II of the ADA. The DOJ also staked out a similar position in the case of state medical boards, writing in a 1993 amicus curiae brief before the U.S. District Court for the District of New Jersey that the New Jersey Boards of Medical Examiners’ “focus on past diagnoses and treatment of disabilities rather than conduct that cannot be deemed justified.” Nevertheless, to our knowledge, the DOJ has yet to open an investigation into a state medical board for violating Title II.
I urge the DOJ to investigate state medical boards’ compliance with the ADA. The DOJ should also issue guidance on 28 C.F.R. § 35.130 to clearly state that state medical boards cannot ask inappropriate medical licensing and application questions, especially questions related to mental health history. In the interim, I ask that you provide me with complete answers to the following questions by March 16th, 2023:
Does the DOJ have additional information, beyond the scholarship mentioned above, about the extent and different ways state medical boards may be violating Title II of the ADA? If so, please explain what it has learned.
Has the DOJ’s Civil Rights Division been engaged on this issue during the last several years? If so, please explain what work they are doing.
Does the DOJ stand behind its 1993 amicus curiae brief in Medical Society of New Jersey v. Jacobs? If so, can it commit to publishing a version of it in the form of subregulatory guidance?
How will the DOJ ensure that all state medical boards comply with the law and affected applicants or physicians have recourse?
Has the DOJ examined similar issues when it comes to residency programs and hospital privileges?
I also ask that you brief my personal office staff members Jenni Katzman and Kevin Wu on these questions.
Thank you for your attention to this important matter.
Louisiana Senate Bill 286, dubbed the Physician’s Bill of Rights, fell into a “coma” before the Louisiana Legislature on (Wednesday) May 2, 2018.
“Coma” is my word. The official status of this bill is that it has been “Involuntarily Deferred.” According to Louisiana House Rep. Katrina Jackson (D), District 16, this means that for all practical purposes, SB286 is “dead” for Louisiana Legislative session 2018. Jefferey Williams, Executive Vice President and CEO of the Louisiana State Medical Society (LSMS) responded to HARBR’s inquiry. He stated:
“In Louisiana, when a bill is “involuntary deferred” it is dead for all practical purposes. Typically, you do not see the House entertain motions to override/hear bills that were involuntarily deferred in a committee as they do not want to set any sort of precedent as there are hundreds of bills each year that meet this fate. Therefore, I believe the bill to be dead.” The LSMS was an strong advocate for the bill.
Yes, there is a method by which the “dead” bill can be reconsidered before the committee which let it die via “Involuntary Deferment,” but such resurrection is unlikely according to the Louisianan’s contacted by HARBR including Elizabeth Crisp who covered the story in The Advocate.
Why is HARBR choosing the word “coma?” “Coma” would imply the state or condition of something which may “appear dead” but is not actually dead. The Physician’s Bill of Rights was, and remains, a strong bill. In fact, written and sponsored by Louisiana State Sen. John Milkovich (D), District 38, the Physician’s Bill of Rights passed through the Senate Health and Welfare Committee without opposition and then passed unanimously on the full Louisiana Senate floor. A similar House Bill (HB778) passed unopposed in the same House Health and Welfare Committee which left SB286 to die on May 2. HB778, written and sponsored by Rep. Katrina Jackson (also a Physicians Bill of Rights advocate), went on to pass unanimously on the full Louisiana House floor.
Advocates of SB286 praised it on May 2 as an excellent piece of legislation. It was referred to it as “landmark” bill with implications for the due process reforms of healthcare licensing boards in every state in the nation.
Undoubtedly, Louisiana will see this bill presented again. If not in the short session of 2019, then in the regular session of 2020. According to the Louisiana State Constitution, even though a non-passed bill in any given session will be withdrawn from the files of the legislature, a formal “continuous body” related to a bill (or “legislative instrument”) may meet on a regular basis between sessions.
Another reason to use the word “coma” instead of the word “death” is that Louisiana could very easily be subject to suit. If not the state itself, then the Louisiana State Board of Medical Examiners and other healthcare regulatory and licensing boards directly. This would be under the auspices of a precedent setting, and relatively recent, decision by the Supreme Court of the United States (SCOTUS). In North Carolina Board of Dental Examiners v Federal Trade Commission, SCOTUS laid out conditions by which licensing and regulatory boards could and could not act as agents of their respective states. In order to be considered a “state agency,” boards now need to show that they have a voting minority of “market place participants” in the profession being regulated. The other means by which a state regulatory or licensing board may come into compliance with the SCOTUS decision, and now, the Federal Trade Commission (FTC) mandate, is to have demonstrable and meaningful state oversight by an entity or entities which are not marketplace participants in the profession regulated by the board over which they are providing oversight.
The concern of SCOTUS and the FTC is that without meeting at least one of these two conditions, licensing and regulatory boards might act in their own interests rather than in the interest of the public. Too, SCOTUS and FTC, are concerned that beyond acting in the interest of their own professions over the interest of the public, boards may act in the interest of boards themselves over the fair and equal interest of given licensees or classes of licensees. This might be called “market capture via regulatory capture” and would be to the detriment of patients, the public, and licensees alike.
States whose regulatory boards do not comply with the conditions set forth in North Carolina Dental Board leave every member of every board including administrative staff and legal counsel vulnerable to suit in their professional capacities and as persons. Suits might be based in the violation of anti-trust laws, or on injury against persons (such as licensees) who were harmed without the benefit of due process of law.
Finally, we are choosing to use the word “coma” instead of the word “death” because healthcare licensees in every state across the nation, as well as their families, friends, and colleagues are being awakened to the injustices which have befallen physicians, and increasingly, other healthcare providers, since the passing of the short-sighted Healthcare Quality Improvement Act in 1986.
Louisiana is not alone by any stretch. It was foolish and immature for the Louisiana House Health and Welfare Committee to put SB286 to “rest” in the way they did. When the Physician’s Bill of Rights awakens from it’s “Involuntary Deferment” it may well be in a different state already positioned to make the rightful move. The first state will set the landmark precedent and if the precedent does not affect national policy, it will be followed by every state in the nation.
Preface to this story with additional links at HARBR News.
See Video of the May 2,2018 four hour Louisiana House & Welfare Committee Hearing which put The Physicians Bill of Rights to sleep. Start at 1 hour, 34 minutes (1:34).
BREAKING NEWS: Physician’s Bill of Rights Before the Louisiana Legislature: CALL TO ACTION!
By Christian Wolff | Healthcare Alliance for Regulatory Board Reform (HARBR) I HARBR-USA.org I April 20, 2018
Louisiana State Senator John Milkovich has introduced Senate Bill 286 before the Louisiana legislature and according to The Advocate reporter Katie Gagliano, The bill, dubbed “The Physican’s Bill of Rights” sailed through the Senate Health and Welfare Committee on April 4, 2018. According to Elizabeth Crisp, also of the Advocate, a similar House Bill made it through the House Health and Welfare Committee “without objection.” The House Bill (HB 277) was introduced by Louisiana State Representative Katrina Jackson. HARBR researchers discovered the Louisiana news on April 10 and sounded the alarm to its affiliates. The affiliates in turn sounded the alarm to their affiliates and numerous communications were made directly to these legislators. The communications were made by HARBR members and affiliates from all across the country. Our interest is that what happens in Louisiana has much potential to forward our mission of full due process for physicians (and other healthcare providers) when they’ve been brought before their respective boards to answer to complaints. What happens in Louisiana could set a precedent for change in the other 49 states.
Call to action: As of April 19, 2018, The bills have gone before their legislative counterparts (The Senate Bill to the House, and the House Bill to the Senate). According to Elizabeth Crisp, HB 277 passed the full Louisiana House, 94-0 without discussion. Unfortunately, it would appear as if Rep. Jackson’s bill was “ammended” at some point and in HARBR’s reading, it appears as if her bill may have been “watered down. With this kind of positive reception, why would the bill need to be watered down? The reasonable answer is that there is a lot of powerful opposition. Organizationally, there is Federation of State Medical Boards (FSMB) which has issued a subtle intimation of their opposition to the Louisiana Bills. Given the power of the FSMB, HARBR opines, the intimation may be intended as intimidation. The Louisiana State Board of Medical Examiners (LSBME) opposes the bills, as do, likely, every Medical Board in the country. A very powerful group called “Public Citizen” opposes the bills, and perhaps, due a lack of understanding, many private citizens may be opposing the bills as reflected by a number of articles written for other publications.
In support of the bills are some powerful groups as well. One is the Louisiana State Medical Society. Another is the Association of American Physicians & Surgeons (AAPS). The Healthcare Alliance for Regulatory Board Reform (HARBR) supports these bills.
In the end, it is likely that Governor John Bel Edwards will have to sign the bills in order for them to become law. At last report, Gov. Edwards had not been briefed on these bills. There is good reason to believe he will sign them, but we should not yet rest on the laurels of the Louisiana Legislature quite yet. The good news is that both bills received unanimous support from their respective full houses. This indicates that the nature of the bills are not encountering any partisan divides. In fact, the bills were introduced by Democrats to a legislature which has a Republican majority. Gov. Edwards is a Democrat who, prior to becoming governor, served two terms as the Minority (Democrat) Leader of the Louisiana House of Representatives.
Referenced in FierceHealthcare’s article: AP investigation: Doctors keep licenses despite sex abuse, By JEFF HORWITZ and JULIET LINDERMAN | Apr. 15, 2018 AP News
An appeal by a physician whose lawsuit against the North Carolina PHP and the state medical board was thrown out by a lower court has been denied. But Kernan Manion is pursuing another route
By Pauline Anderson: Form MedscapeNews, Originally published Sep 19, 2017
A physician whose lawsuit against the North Carolina Physician Health Program and the state’s medical board was dismissed is appealing his case to the US Fourth Circuit Court of Appeals.
By Pauline Anderson: From Medscape News, Nov 8, 2016
A lawsuit filed by a physician against the NCMB and the NCPHP claims significant loss of earnings, public humiliation, irreparable harm to his professional reputation, and severe emotional distress.
By Pauline Anderson: From Medscape News, Originally published Feb 16, 2016
November 16, 2017 Investigative Report by Christian Wolff |
In March and May, 2017, I wrote letters to the Center for Personalized Education for Physicians (CPEP). I declared them “unaccredited” on May 25, 2017 in an article I wrote for the HARBR website. See “HARBR Declares CPEP “Unaccredited”” at HARBR’s website. HARBR stands for Healthcare Alliance for Regulatory Board Reform.
In May and June 2017, I wrote another Physician Health Program (PHP). It is the Acumen Institute located in Lawrence, Kansas. This time, I used my real name. The procedure was the same as with CPEP only my line of questioning was more extensive. After more than 3 weeks had passed without response, I wrote the Acumen Institute again. After 3 more weeks without response, I pronounced them “unaccredited” as well.
It is only now that I am publicly declaring them “unaccredited.” HARBR extends an open invitation for the Acumen Institute to publicly respond and to offer documentation of their accreditation.
Silence is capable of speaking volumes. It is reasonable to assume that the Acumen Institute did not respond because truthful responses to the questions asked would not shed them in a favorable light. We will assume the worst by default and expect the Acumen Institute to respond if they wish to redeem themselves as a legitimate Physician Health Program. HARBR also invites others to contact Acumen and to report the result of their contact or contact attempts here. Find the Acumen Institute website at http://www.acumeninstitute.org/.
Acumen did not offer an independent email address on their website. Only contact forms. The forms I filled out can be viewed here. The content of the emails I sent them is as follows:
May 13, 2017
To whom it may concern at Acumen Institute and Acumen Assessments:
I have a colleague who is being coerced into an assessment at your facility. He’s been order to be assessed in exchange for the possible retention of his healthcare license. I have a few questions for you if you would not mind answering them. I do want say, I am at first read, impressed by your website. As a web designer, I appreciate its good look. As a person with an interest in healthcare, I appreciate the fact that Acumen seems more transparent than other facilities who participate in coercive treatment.
1. Why do you have two separate facilities – Acumen Assessments and the Acumen Institute?
2. What are the tax classifications of each?
3. Do you accept medical insurance? Malpractice insurance? If not why not?
4. Do you have anything to demonstrate a history of the efficacy of your treatment set?
5. Do you use tests which have been tailored to healthcare professionals participating under regulatory board pressures? Do you have information on these tests suc as authors, author affiliation, and validity and reliability measures? Publication in major scientific journals along with independent peer review?
6. I see that your staff has a long and impressive list of “Presentations AND Publications.” By my count, there are 55 listed. Of those 55, I could only find one item which seemed to be an actual publication. Don’t you find that calling that list “Presentations AND Publications” a little misleading? Anyone not looking closely (especially with that section title) could easily assume half the items, more or less were publications. If you had divided this list into two sections for the sake of transparency, you would have had about 54 presentations under “Presentations,” and only 1 item under Publications. That publication seems to be a chapter in a handbook:
Stacy, S., Graham, P., Athey, G. (2008). The Use of the Rorschach in Professional Fitness to Practice Evaluations. In Gacono, C., Evans, B., & Kaser-Boyd, N. (Eds.), The Handbook of Forensic Rorschach Psychology. Mahwah, NJ: Lawrence Erlbaum Associates.
When I read a citation, I sometimes look for page numbers in order to see how long a chapter or article is. You citation has no page numbers.
Published independently peer reviewed written material is more reputable and reliable than presentations to a limited, time specific audience. How do you explain yo blending of your 1 publication with 54 presentations?
7. Would you say it is fair to say that the vast majority of your presentations have been to Physician Health Programs (PHP), the Federation of State Medical Boards (FSMB), and affiliates of these two?
8. As professional psychologists, psychiatrists, and other mental health professionals, would you say you understand the importance of independent peer review? Ho would you explain it’s importance – or if you prefer, why do believe this is important? Test results? What is the importance of independence in the establishment of the results’ reliability?
9. Why don’t you have a regular email address? I like to keep a paper trail of all my correspondence. Although I personally can work with your format, may people – li those being coerced into treatment – could not. I’ve noticed that this lack of a simple published email address is a regular feature on websites for facilities which participate in coerced assessments and treatment.
10. Finally, for now: Why don’t you just publish the answers to most of the questions I’ve asked. I’m sure you are aware that your clientele tends to be both scared an skeptical. They are surely going to want to know as much as possible. It seems you should be able to anticipate their questions and it seems the respectful thing to to provide answers – published and verifiable in advance.
Thank you in advance for answering my questions. I know they seem kind of tough and you may have some apprehension about answering them, but it is important. I will look forward to your response.
Sincerely,
Christian Wolff
Healthcare Alliance for Regulatory Board Reform (HARBR)
Then:
June 4, 2017
To whom it may concern at Acumen Institute and Acumen Assessments:
I wrote to you over 3 weeks ago, and so, far have not received a response from you of any kind what so ever. I am convinced you are agreeable to email communication since you have an email Contact Form. Perhaps you missed my email. That happens sometimes. I am still concerned that, for some reason, you don’t simply publish your email address so people may use their own email client. This would allow people to be sure that their email was received if, say, your Contact Form was not working. Did you receive my email of May 23? I have reproduced it below. Due to the delay in your response, my colleague is feeling pressure to make an uninformed decision about whether to comply with his board’s demands or not. He would like to be on solid ground in declining their demands if it turns out that yours is not a reputable facility. Without that information, he will likely comply by default. There is a lot that is on the line for him. I suppose, as experts in behavior generally, and experts in working with healthcare professionals being coerced into assessment and treatment, you know that licensees will comply by default if they are not on solid ground in declining to comply. Is that reasonable to believe – that you would know that?
I have a couple more questions:
1a. Do you require pre-payment for your assessments?
2a. Do you ever refund fees? If so under what conditions do you or do you not provide refunds?
3a. In cases in which it seems that an assessment was, in your opinion, unnecessary, unwarranted, or redundant, do you ever send the bill to the board who coerced licensee into assessment? If so are there any instances at all in which the board has ever paid?
Please get back with me a soon as possible. The matter is of great importance and time is getting VERY tight. Thank you.
Sincerely,
Christian Wolff
Healthcare Alliance for Regulatory Board Reform (HARBR)
Why would the Acumen Institute not answer these questions?
11-10-17 | News | Christian Wolff | In an article first published on February 25, 2016 in The Kent County Daily News, reporter Jeremiah quotes Rhode Island Rep. Mike Chippendale:
“Generally, there is a natural and healthy element of tension between licensed professionals and the board overseeing them,” Chippendale said. “However, while the details of each of these experiences are unique, the one overriding common thread is an almost irrational fear of interacting with the Board on any level.”
“These are doctors, surgeons, nurse practitioners — professionals who’ve invested a minor fortune
and decades of their lives to become a doctor or other medical professional. It is extremely
concerning to me that the reputation maintained by this Board has fostered an unhealthy medical
community environment,” he continued.
“I’m hopeful that medical professionals who have interacted with the Medical Board of Licensure and Discipline will come and share their experiences with us personally. The conversations that I’ve had over the last several months are concerning and in order for this commission to complete its important work, this type of input from the medical community is critical,” he finished.
HARBR is inspired by the work going on in Rhode Island and hopes that similar progress can take place in Oregon’s Oregon Medical Board (OMB), Oregon Board of Psychologist Examiners (OBPE), and Oregon Board of Licensed Professional Counselors and Therapists among others. HARBR hopes the other states will also follow the good work of Rhode Island’s Representative Mike Chippendale.
Photo attribution: By Bubbasax (Own work) [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons
by Kali Miller, PhD | Sept.12, 2017 | Posted to HARBR Oct.12, 2017
Mama don’t let your babies grow up to be doctors.
“75% of med students and new doctors are on antidepressants or stimulants (or both)”. The title of Pamela Wible MD‘s article caught my eye. I knew that CNN had reported that 25% of medical students report depression and about 1 in 10 have suicidal thoughts. As a former psychologist who had clients who were physicians and friends who went to medical school, that number sounded low to me. Dr. Wible’s numbers sound much more accurate, perhaps due to enhanced anonymity for her participants. After all, what professional is going to risk their career and livelihood by reporting having “psychiatric problems”. This could not only negatively impact medical students during training, but would then have to be reported to their boards when licensed. It’s interesting as professionals how we are trained to be HIPPA compliant, protecting our clients and patients confidentiality vigorously, while at the same time accepting that our own medical and mental health information is not protected from our boards and even some insurance panels.
The American Academy of Sleep Medicine reports that medical students are one of the most vulnerable groups when it comes to suffering from “poor sleep”. Those unfamiliar with medical school might think it is the rigorous studying and the stress of making life and death decisions that disrupts students sleep and I’m sure they’re not wrong. However, consider that in 2003 The Accreditation Council for Graduate Medical Education (ACGME) developed regulations which restricted “continuous maximum extended duty to 30 hours.” Does your mind boggle? Well thank goodness their recommendation was reduced in 2011 to 16 hours for some (not all!) medical students. In “The Danger Medical Students face when they don’t get enough Sleep”Sierra Kennedy writes that doctors who work more than 16 consecutive hours have “36% more serious medical errors than those whose scheduled work is limited to 16 consecutive hours” and “make 5X as many serious diagnostic errors.” This is certainly good information but really, isn’t the real question how many hours can an individual in a complex high stress occupation work before their cognitive ability significantly declines at all? These numbers don’t tell us what the decline in functioning was prior to the 16 hours. Are you curious what the decline was after 8 hours, or 12 or 15? If I recall correctly, in graduate school we were told that high stress professions such as physicians, police officers etc had a significant decline in the ability to make good decisions, defuse high stress situations and regulate their own emotions after 4-6 hours. And never mind learning.
The lack of sleep and the elusive search to feel sharper, faster, smarter explains the stimulants. And the use of stimulants doesn’t just include stimulant medications, which are controlled substances. Smoking and excessive caffeine intake is also rampant in the medical community. Didn’t you ever wonder why physicians, who of all people should know better, don’t. In my clinical psychology graduate program we were told that we could not even make an accurate diagnosis until our clients were sleeping 8 hour per night on a steady schedule for a month. Prior to that, our goal was primarily to assist our client in creating a healthy sleep routine for their mental as well as physical health. The research was in, sleep deprivation can cause depression, anxiety, aggression and even psychosis. Meanwhile, medical students and many physicians may have gone far beyond the hopes of best practice and are simply trying not to kill anyone in their impaired state.
Since being made privy to these facts over 25 years ago, I became convinced that forcing medical students and physicians to work with lack of, or interrupted sleep is not only unethical but should be illegal. I think of medical school as similar to joining a cult. You feel very honored to be asked to join. You quickly realize those in power control who and what you are exposed to but believe that the reward will be well worth it. You have little or no time for extraneous relationships, including family. To succeed you must strictly adhere to prescribed reading and activities. You are often limited in when and what you can eat and told when and sometimes where you can sleep. As exhaustion mounts you are particularly susceptible to suggestion. You are told your entire future rests on your actions, your absolute perfection, but are set up again and again for failure. Sometimes your failure has lethal heart wrenching results and but you can’t talk about it. In fact, there are a lot of dirty little secrets you aren’t supposed to talk about. When the inevitable error happens you are either shamed and chastised, even cast out, or a superior covers for you. This leaves you feeling pitifully grateful, yet knowing your mutual silence is another cost of being in the cult, or profession, as the case may be.
Medical school graduates hope that once they’re licensed the depression, the medications, the cigarettes and alcohol won’t be needed any more, the memory of mistakes will be blunted by time, and somehow everything is going to be Okay. You have only to look at the low career satisfaction ranking of physicians or the Mayo Clinic study that confirms physicians have the highest suicide rate of any profession to see that all to often, this simply isn’t the case.
It is refreshing to see professionals like Pamela Wible speaking out. If nothing else students can make an informed choice regarding whether they want to pursue a career in medicine. Facts in hand and caught in the spotlight, teaching facilities have an opportunity to make wiser choices about how young physicians are trained. Physicians themselves can begin to speak up about what they have endured and rather then argue that they made it through or “It’s always been done this way” they can speak up for their own, the future of medicine in this country.
Our current model of training physicians serves neither the provider nor the client and it doesn’t take a psychologist to figure that out.
