Subcommittee Oversight Hearing of the Application of the Americans with Disabilities Act
to Medical Licensure and Judicial Officers
May 22, 1997
I am here today to alert you to some of the difficulties encountered state medical boards in licensing and disciplining physicians under the Americans with Disabilities Act of 1990.
The Federation of State Medical Boards of the United States, Inc. is a national organization comprised of medical licensing and disciplinary boards of the United States and its territories. As such, the Federation is positioned as a leader in medical licensure and discipline and is an authoritative source of research, policy development, education, and information on these issues. The Federation's primary mission is to improve the quality, safety, and integrity of health care by supporting and assisting state medical boards in the protection of the public.
To assist its member medical boards in grappling with the changes brought upon them by the Americans With Disabilities Act of 1990, the Federation convened a work group to study the impact of this landmark legislation on state medical boards and to make recommendations regarding the licensing and discipline of physicians under the new law. While working to meet its charge, the group promptly discovered the methods used by state medical boards to screen physicians during the initial licensure and license renewal processes were unexpectedly going to be a major focus of ADA litigation. As time passed, the group also found that the ADA would have an unanticipated impact on the examination process by which state medical boards examine licensure candidates, namely the United States Medical Licensing Examination, Steps 1, 2 and 3. Although both of these areas of impact are of concern to the Federation and its members, the ADA's effects on each board's ability to identify, intervene upon, and monitor those individuals who would otherwise be considered unfit to practice safely without such actions is perhaps most pressing because it holds the greatest potential of harm for the public.
Since passage of the ADA, state medical boards have wrestled with the limits imposed on their ability to ask questions touching on the fitness of applicants for licensure. Questions that previously were broadly structured and incorporated inquiries about the mental health or chemical dependency histories of an applicant are now generally recognized as prohibited under the ADA. Professional licensing agencies had previously asked such questions in a manner that would enable a board to learn of any mental health or chemical dependency history of any applicant. Medical boards contend that to carry out their important mission of protecting the public from unsafe medical practice, they need ample authority to learn as much as possible about each applicant appearing before them. Traditionally, licensing boards consistently have asked questions as far-reaching as: "Are you now, or have you ever been, addicted to the use of alcohol or controlled substances?" or "Have you ever been diagnosed and/or treated for a mental illness and/or serious physical illness?"
The Department of Justice, as the agency charged with administering the ADA, has clearly articulated that medical boards may not ask such broad questions regarding an applicant's status or condition because it amounts to an unacceptable "screening out" of individuals based upon their disability, thereby subjecting an applicant answering positively to a more intensive background evaluation than other applicants. The Department of Justice states that boards are unable to show that such questions are necessary to administer licensing programs and maintains that only questions about an applicant's conduct and behavior are permissible in assessing that individual's current fitness to practice medicine.
That position first became visible to the medical licensing community in 1993, when the Medical Society of New Jersey sought to enjoin the New Jersey Board of Medical Examiners from asking questions that the Medical Society argued violated the ADA. [Medical Society of New Jersey v. Jacobs, CA No. 93-3670, (D.N.J. 1993).] During the course of that litigation, the Justice Department filed an amicus curiae brief in support of the Medical Society's position and clearly articulated its position that only questions about an applicant's conduct are permissible in assessing the applicant's current competence to practice medicine. The Justice Department faulted the Board for seeking "information about a candidate's status as a person with a disability instead of focusing on any behavioral manifestations of disabilities that might impair the ability to practice medicine."
The case was resolved through a settlement by which the board agreed to significant revisions in its application forms. The questions and definitions agreed to by the New Jersey board (see Attachment I for pertinent excerpts) have come to represent a "safe harbor" for boards concerned about their latitude in phrasing questions. New Jersey's questions now have the following elements:
The New Jersey board also began sending detailed questionnaires to each applicant's prior deans, supervisors and employers, requesting information about the applicant's conduct and behavior during each portion of his/her adult history. Since the New Jersey case, at least two federal district courts have rendered opinions that directly address the question of permissible questions by professional licensing boards. These two cases, however, both involve boards of bar examiners. In Applicants v. Texas State Board of Bar Examiners, No. 93 CA 74OSS (W.D. Texas. 1994), the court held that the Texas Bar did not violate the ADA in asking applicants about their diagnoses of or treatments for certain specified major mental illnesses over the past ten years. This case is noteworthy because the question on the Texas application asked only whether the applicant had such diagnosis or treatment and did not link reporting to any current or past ability to practice his/her profession. The court agreed that while a diagnosis of bipolar illness, for example, ten years ago is not necessarily predictive of an applicant's future behavior, in light of the chronic nature of severe mental illnesses and the safety concerns of the board, the board could consider such information in assessing an applicant without violating the ADA. The court acknowledges the impossibility of crafting a question that would identify only those individuals suffering mental illnesses affecting their fitness to practice law, and concluded that the Board had tailored its conduct in the least intrusive, least discriminatory way. Finally, the court noted, the Board's use of the question and its subsequent investigation "are necessary to ensure the integrity of the Board's licensing procedure." On the other hand, in the Virginia case, Clark v. Virginia Board of Bar Examiners, CA no. 94-21 1 -A (E.D.Va. 1995), the court ruled against the Virginia Bar's ability to ask an applicant a question more open-ended in content but more limited in time: whether the applicant had been treated or counseled for a mental, emotional or nervous disorder in the past five years. In this case, the court reviewed expert testimony refuting a link between mental health counseling and the practice of law. This evidence, along with inconsistent Bar practices, led the court to rule that the Bar had "presented no evidence of correlation between obtaining mental counseling and employment dysfunction." Thus, the Bar had not carried its burden of showing that the applicant did not meet the essential eligibility requirements, much less posed a "direct threat to the health or safety of others." The Virginia court distinguished the Texas case as applying only to "specific behavioral disorders found relevant to the practice of law."
They eliminate the broad "have you ever" language for disabilities encompassed under the ADA;
They suspend the use of a temporal window ("have you in the past five years...... ), except in the case of a two year window for "current 'illegal use of controlled substances (not considered a disability under the ADA);
They include a notice that, when considering an answer to the question about current illegal use of controlled dangerous substances, an applicant may choose not to answer and assert in citing the Fifth Amendment privilege against self-incrimination;
They offer a definitions section which includes a definition of "the ability to practice medicine." This section begins to establish some of the essential eligibility criteria necessary for an applicant to receive a license.
It is difficult to reconcile these two cases. The attitudes of the courts towards the litigants are inapposite, with the Texas court exercising considerable deference to the important work (the "awesome responsibility") of the administrative agency and the Virginia court applying an equal dose of skepticism towards the agency and favorability towards the plaintiffs. For example, in both cases, the fact supported a finding that the bar organizations rarely if ever denied licensure to applicants who answered the mental health questions affirmatively. The Texas court found that the Bar's failure to actually deny an application after investigation of a "yes" answer indicated a careful, individualized review of each applicant's case, whereas the Virginia court used similar statistics to argue that the questions were overbroad and did not serve the function they were designed for.
So what alternatives does a medical licensing board now face? The first possibility, of course, might be to just not ask any background questions touching upon prior or existing disabilities. Although legally correct, this approach would appear, to say the least, to be poor public policy. It offers no opportunity for medical boards to identify, evaluate, and act upon those who might pose a risk to the public. In fact, a state medical board would likely be accused of being derelict in its duty if it did not attempt to learn about those mental and physical conditions which impact an individual's ability to practice medicine with safety and competency.
The second possibility might be to simply and unquestioningly adopt the "safe harbor" questions as developed with the Department of Justice's assistance during the course of the New Jersey suit. Such an approach does have appeal, after all. It offers shelter from the potential for expensive and distracting litigation. Yet the Federation believes that this approach does not correspond with the experiences of state medical boards. Medical boards continue to believe that certain aspects of an applicant's past (as opposed to current) mental and physical diagnoses and treatment are highly relevant when attempting to evaluate an individual's current, as well as future, ability to practice medicine with the level of safety and professionalism that the public deserves. That belief, in turn, follows from the fact that some of those practitioners who would respond affirmatively to broadly stated questions may come to pose a direct threat to the public without ongoing oversight, and, further, that those same individuals would not be identified and subsequently monitored if left to answer only subjectively-phrased or temporally worded questions. And each of these beliefs, the Federation submits, is consistent with cur-rent thinking on physician impairment.
The third alternative might be for each medical board to conduct a risk analysis, in effect balancing its perceived need to identify those who could pose a direct threat to the public should they engage in practice while impaired, against the need to avoid what could be considered the unnecessary "screening out" of those with a disability as prohibited under the ADA. In that way, specific, troublesome disorders could be identified, and, perhaps, appropriate "temporal windows" could be developed. Other past disability history could, perhaps, be ignored altogether as not predictive of future risk to the public. But before deciding it is best to adopt such a rationally appealing approach, it is fair to ask whether past history is necessarily predictive of future performance in such a context. If the answer is anything more determinative or certain than "not necessarily," the Federation's membership is unaware of the basis for that conclusion. Furthermore, the Federation membership remains unaware that those in the licensing or treatment communities have yet reached a level of sophistication wherein any particular period of time or pattern of behavior can be identified as generally predictive with respect to safely eliminating the need for monitoring and oversight. To date, our member medical boards believe that the type, length, and degree of required treatment and monitoring demands ongoing analysis in each and every situation. Contributing factors, like prior history, including previous failures at recovery; the drug(s) of choice; the extent of pathology; and the strength of support mechanisms must all be assessed. Even a cursory survey of Ohio cases documented since 1992 belies the predictability of, say, a two year temporal window. That survey uncovered 14 practitioners who suffered relapses following two or more years of sobriety. Of those,
Two practitioners had over two years sobriety before relapseOther states' experiences are undoubtedly similar.
Four practitioners had over three years sobriety before relapse
One practitioner had over two years before first relapse, then three years before second relapse
Four practitioners had over five years sobriety before relapse
One practitioner had over eight year sobriety before relapse
One practitioner had over nine years sobriety before relapse
One practitioner had over thirteen years of sobriety, relapsed, then had eleven years sobriety before second relapse.
Moreover, the fact that a physician has done well enough in recovery to avoid detectable misconduct, even over a significant period of time, is not necessarily predictive of the extent of the harm that can be unleashed upon the public if left unmonitored. As an illustration, we have the case of Dr. A, an anesthesiology resident who undertook training at a prestigious hospital in one state, with the intention of applying for and receiving a license to become a practicing physician. During the application process, Dr. A revealed that he had, in the past, suffered from chemical dependency, a protected status under the ADA.
That state medical board's investigation uncovered information showing that Dr. A's drug abuse history was significant and extensive. Undoubtedly realizing that the licensure process might now involve the possibility of ongoing monitoring, Dr. A submitted an application for a license in a neighboring state. On this second application, Dr. A answered "no" to a question with a temporal window.
Dr. A was telling the truth. In fact, his official sobriety date was just over five years. At that time, his wife had checked him into the first of several treatment programs, from which he emerged with a guarded prognosis. Relying on Dr. A's truthful answer, and unable to document any other significant problems during his training course, the second state issued Dr. A a license to practice medicine.
Dr. A soon became famous-or perhaps infamous--as the anesthesiologist who caused more than 200 patients to endure surgery without painkillers while he used the medications to feed his own drug habit. His is a dramatic example of how a law designed to protect Americans from discrimination can have an unintended, but in this case, horrifying, impact.
And, if it is not already excruciatingly evident, the problem for medical licensing boards goes far beyond simply identifying the potential for public harm. It includes the question of how long and how extensively monitoring to protect the public from harm can legally be maintained under the ADA. Can we monitor a physician for one year? Two years? Five years? The issues and analysis remain much the same. Public safety demands oversight. But oversight perceived by someone as an unnecessary intrusion will result in litigation. And, ironically, this dilemma affects not only the medical licensing boards themselves, but also the very treatment programs involved in treating, monitoring, and then advocating for, their patients. The danger, of course, is that unless we make changes now, the very law that advocates on behalf of those with disabilities could become a vehicle for the destruction, or at least the neutralization, of the treatment and monitoring network now responsible for ensuring that those in its charge remain productive members of our society. Without the freedom to provide ongoing oversight, whether through medical boards themselves or through existing treatment and monitoring networks in the private sector, boards will likely have no further contact with a licensee after the initial or renewal process unless a complaint is filed with the medical board against the physician. By that time, you can be assured public safety has been compromised, and that harm may have already occurred.
Perhaps medical boards should be forgiven for believing that the Department of Justice's current approach does little more than make them a test bed for presumptive theories that it is acceptable to license, without evaluation or monitoring, those physicians who have extensive impairment histories but have not yet engaged in conduct that has harmed the public. Then, should the evidence prove otherwise, with a sufficient number of patients having been harmed, medical boards can petition the Department of Justice to widen the permissible window of inquiry. But, in the meantime, the rights of the disabled practitioner have continued to outweigh the rights of citizens to safe medical care. Simply put, it has never before been the role of state medical boards to wait until unacceptable or dangerous conduct occurs to identify potentially dangerous practitioners.
The Federation believes that given the high stakes involved in delivery of medical care by physicians, medical boards cannot adequately protect the public if they cannot ask about some portions of an applicant's health history, and cannot maintain adequate monitoring of those needing it for safe practice.
While licensing procedures remain the Federation's primary focus, a second issue of concern is the consequences of ADA on the examination program used by state medical boards, the United State Medical Licensing Examination (USMLE). We believe that these consequences were unintended by Congress and the statutory language approved by it, yet they have nevertheless arisen from agency interpretations and judicial opinions.
The USMLE is a standardized test, consisting of three components designated as Step 1, Step 2, and Step 3, each of which is currently administered twice each calendar year. More than 100,000 examinations were administered by the USMLE program in 1996. There were approximately 1,000 requests for test accommodations in connection with those exams, more than double the number of requests received in 1994. The vast majority of these requests were based on diagnoses of Learning Disabilities (LD) and/or Attention Deficit Disorder/Attention Deficit Hyperactivity Disorder (ADD/ADHD). These statistics, at least in part, presumably and hopefully, reflect increased awareness of such conditions, the dilution of any stigma historically attached to them and/or to increased awareness of legal rights under the ADA. It would also appear, however, that some individuals would attempt to use such diagnostic labels to obtain a real or perceived advantage in testing or to explain failure that might as easily be explained by other factors, such as personal problems, lack of motivation or preparation, poor study skills, or insufficient intellectual capability for the task at hand.
In the USNME program, there is a strong commitment to providing fair testing conditions for all examinees, including the provision of reasonable and appropriate accommodations for each eligible examinee with a documented disability, as that term is defined in the ADA. Many examinees may prefer to test without standard time constraints or without sharing a room with other examinees. Some may, in.fact, even improve their performance if tested in this manner. To allow an examinee to test under such special conditions, in the absence of a documented disability, would however, operate as an unfairness to the other nondisabled examinees taking the test under standard conditions.
The statutory language of the ADA reveals no intention that anything or everything that detracts from or prevents desired performance in a given task should constitute a disability. Nor does the statutory language state or imply that the application of a given diagnosis to an individual results ipso facto in that individual being "disabled" within the meaning of the ADA. Rather, the ADA contains carefully drafted and explicit language to define the term "disability," to wit: "A physical or mental impairment that substantially limits one or more of the major life activities of such individual." There is nothing in the statutory language to indicate an intention to delegate to a clinical psychologist or other professional who has evaluated an individual and who may have an ongoing relationship with that individual, the authority for making the determination as to whether that individual is entitled to the protection of the ADA. Yet there is legal precedent to indicate that that is how the law is being interpreted and applied. A case in point involved three individuals who requested testing accommodations in connection with the June 1996 USMLE Step 1. Each of the three had requested testing accommodations based upon diagnoses of LD and ADD/ADHD made by the same evaluator. These diagnoses were made for the first time while these individuals were in medical school and no testing or other accommodations had been received by these individuals prior to these diagnoses. The documentation submitted by each of these three individuals to the testing entity was reviewed by two or more experts in the field of the alleged disability, all of whom concluded that the documentation failed to provide the requisite clinical, historical, and psychometric data to support the diagnosis. It was concluded that the documentation submitted was insufficient to establish that any of these individuals had a physical or mental impairment that substantially limits one or more of their major life activities. Accordingly, the three requests for testing accommodations were denied.
The documentation for one of these individuals included a statement that: "[S]he never experienced a significant difficulty until entering medical school. In fact [the student] stated that, in high school she grabbed all the advanced science and math courses that were available and graduated salutatorian with a 4.24 GPA." Another noted that: "I am a thirty-six year old [student] ... I have been able to finish high school, graduate from college with a B.S. in Allied Health with a GPA of 3.44. I have worked as a physician assistant...... With regard to the third individual, the evaluator noted that: "[This student] has completed a B.S. in nursing and psychology, and her Masters degree in Psychiatric Nursing. She had worked several years in this capacity prior to entering medical school. In one of its Directives Transmittals, the EEOC states that the term "substantially limits" means "unable to perform a major life activity that the average person in the general population can perform." Notwithstanding the fact that these individuals had, without accommodation, successfully completed college and had gained acceptance to medical school, an intellectual feat not readily accomplished by the average person in the general population, and notwithstanding the fact that experts concluded that there was not a appropriate basis for the diagnosis given by the professional who evaluated these three individuals, the United States District Court, Southern District of West Virginia, ordered, in response to a request for a temporary restraining order, that they be provided with the requested testing accommodations. In doing so, the Court found that "each of the plaintiffs was examined and tested by what, apparently, were competent professionals who determined that they suffer from the disabilities that they claim to suffer from...... 6 Was it intended that if a given evaluator regards a person as being "disabled" the inquiry as to whether that person is entitled to accommodations under the ADA ends? Was it intended that decision making with regard to the provision of accommodations, particularly where such accommodations may offer a real or perceived advantage to the non-disabled, is to be delegated to any professional who conducts an evaluation, regardless of how thorough or appropriate, and who affixes a diagnostic label? VA-iile the legislative history and statutory language would seem clearly to answer in the negative, there are instances in which courts and regulatory agencies have provided a contrary answer. So long as the issue is framed in terms of diagnostic label and not disability, as defined in the ADA, and so long as there is an inappropriate delegation of decision making to evaluators, the intent of the ADA is not likely being fulfilled and the rights of the truly disabled are thereby denigrated. A related, but different issue is represented by those individuals who are or claim to be disabled for purposes of taking the medical licensing examination, but who view the need for or provision of testing accommodations on that examination to be totally irrelevant in the context of decision making with respect to fitness to practice.
Medical licensing authorities are currently provided with detailed information regarding the USMLE, including the conditions for test administration. From the perspective of those responsible for the USMLE program, those licensing authorities are entitled to know of those instances in which there has been a deviation from standard testing conditions. While medical licensing authorities have responsibility for the administration of USMLE Step 3, Steps I and 2 are generally taken by individuals during their medical education and before any contact is made with a given licensing authority. Accordingly, USMLE Steps I and 2 are administered by entities other than the licensing authorities to which scores are ultimately reported. The sequencing and timing of the taking of these examinations results in decisions about testing accommodations on parts of the licensing examination being made by entities other than the licensing authority ultimately responsible for using the resulting scores in its decision making. Consequently, scores on the USMLE are annotated in instances in which testing accommodations have been provided at the examinee's request. The notation does not identify the particular modification(s) made, but such information would be provided to a medical licensing authority upon request. The notation does not provide any information regarding the nature of the disability and licensing authorities inquiring about such information would be directed to contact the individual.
It has been informally opined by representatives of federal regulatory agencies that so advising licensing authorities of deviations from standard conditions of test administration is contrary to the ADA. The rationale for such an opinion appears that, if a licensing authority has such information, it may use it, and that the use of it would necessarily be unlawful under the ADA.
It is respectfully submitted that the ADA was not designed to assure that those charged with making assessments of fitness and competence not know about the disability of a given individual or not know that accommodations were previously provided to such individual. Rather, it is submitted that the ADA was designed to prevent such decision makers from using knowledge of disability to discriminate based upon generalizations, preconceptions, or biases about such disability or its impact on a given individual's fitness. The law presumes that decisions need to be made as to whether a given individual with a given disability is able to perform, with or without auxiliary aids or devices or other accommodations, the specified essential functions. A decision maker, such as a state medical board, is unable to make such a decision or to assure that necessary and appropriate accommodations will be available to and used by the individual in subsequent medical practice if it has no knowledge of the disability or the accommodations previously provided. Medical licensure exists to protect the public. It assures that those providing medical care do not do so based solely on self-assessments of their competency to provide such care both safely and in accordance with professional standards. If an individual has responded "no" to a question on a medical licensure application which asks whether he/she has any disability which will impair the ability to practice in a safe and competent manner, should that be the end of the inquiry into whether such a disability may exist? Should an inquiry be postponed until the health or life of a patient provides evidence to the contrary?
Many disabilities, such as LD and ADD/ADHD, are life-long conditions which impact and impair one's functioning in a pervasive way. Any expert in the fields of these disabilities will confirm that they do not limit their impact solely to the context of standardized multiple-choice examinations. An individual with ADD/ADHD, for example, may be expected to have difficulty focusing and to be easily distracted or unable to concentrate in the presence of distractions in a testing context, but would be expected to encounter these same difficulties in other contexts as well. Confronted with a negative response to a licensure application question, such as that referenced above, it would be relevant to a medical licensing authority to know that the responding applicant needed to be tested in a room separate from other people with double the amount of testing time because she asserted that "[In her day to day work, she is quite distractible so that it is hard for her to work or study in an environment in which there are many other people," or because "[n]oise, others talking, rustling papers, extra movement around him, etc. distract him and cause him to lose focus," or because he is "often having difficulty sustaining attention in tasks (especially in the area of reading), often having difficulty organizing tasks and activities, often avoiding or reluctant to engage in tasks that require sustained mental effort, and often not responding when spoken to directly. He is very easily distracted by extraneous stimuli, and quite frequently loses things necessary for an activity."
While knowledge of the need for such accommodations in a context requiring intellectual functioning and decision making should not necessarily lead to the denial of a license, it might logically lead to further and appropriate inquiry as to the setting in which the physician intends to practice and the accommodations or modifications, if any, to be made in the practice setting to enable the physician to perform the essential functions of medical practice in a safe and competent manner. Such idiosyncratic decision making cannot take place if the decision made is uninformed, but federal agencies have expressed the opinion that to inform a licensing authority of the provision of testing accommodations on a licensing examination may be violative of the ADA. Impairment of the ability of a state medical board to protect the public by precluding access to information which may be relevant to an assessment of fitness to practice medicine is not logically presumed or assumed to be an intended consequence of the ADA and it is not necessary to assure that there is no unlawful discrimination against qualified individuals with a disability.
In summary, the Federation of State Medical Boards makes the following two recommendations:
The ADA should be amended to recognize the expertise of medical licensing boards in asking questions of applicants about past and current physical and mental health conditions, behavior, and conduct. The answers to these questions are necessary for boards to evaluate applicants and to protect the public. Specifically, there should be a presumption that information requested by a licensing board is necessary to protect the public and that this presumption may only be overcome by clear and convincing evidence that a specific request is overly broad.
The ADA should be amended to explicitly allow medical licensing boards to be notified if special accommodations have been granted to license applicants for tests that are a prerequisite for licensure.
Let us remember that the Hippocratic Oath guides physicians to "first, do no harm." On behalf of the Federation and its member medical boards, I respectfully urge you to scrutinize the ADA in light of these unforeseen consequences and to remedy those portions that run counter to the laws intent by placing Americans in harm's way. By doing so, you will ensure that the public is afforded a high degree of protection without compromising the principles upon which the ADA was conceived.
I thank you for your consideration of this testimony.