medical exams

Interactive Process Framework

November 11, 2019 by William Goren Leave a Comment

I recently had the privilege of presenting at the Georgia ADA Coordinators conference held at the Georgia aquarium. In the room that I presented in, it ran right up against the beluga whales exhibit. There were times when I would look around the room, and I would see a couple of beluga whales staring at me. Kind of cool and weird at the same time. I had the opportunity to present on effective communications as well as be a co-panelist for an excellent presentation by Cheryl Frazier of the Georgia ADA Coordinator’’s office’s office on transition plans and self-evaluation plans. However, before I did those presentations, I had the opportunity to go to any presentation I wanted. I chose to go to Professor Simpson’s of the University of West Virginia presentation where after a brief presentation, which was also excellent, from an EEOC attorney, Professor Simpson spoke about the framework for the interactive process. I asked her for permission to use her presentation as the basis for a blog entry. She said absolutely but wanted to be sure I gave a shout out to the Job Accommodation Network as that is where her presentation came from. She used to work at the Job Accommodation Network, which is associated with the University of West Virginia, before moving into the faculty at the University of West Virginia. Professor Simpson’s website can be found here, and the Job Accommodation Network appears in my blogroll. I also thought the blog entry would do a nice job of building on my do’s and don’ts of the interactive process blog entry. You really need both. Think of this blog entry as the framework for the house, and my do’s and don’ts blog entry as a way the people are supposed to behave within the house. I do want to thank Stacey Peace, the Georgia ADA Coordinator, and Cheryl Frazier for allowing me to participate in the convention. They did a really great job. I also want to thank them both for the fabulous CART services they provided me so that I was able to equally benefit from the communications at the conference. The blog entry is really short. So, I am not going to break it down into categories. The framework for the interactive process goes like this:

Recognize the accommodation request. Doing this means doing the following: remembering that magic words are not required, which we discussed here among other places; acting quickly; assigning responsibility so that it happens; and conducting training done by a qualified individual.
Gathering information. Doing this means doing the following: finding out the individual’s limitations and problems; talking to the employee; remembering the rules on medical exams and disability related inquiries, which we discussed here among other places; remembering that the ADA has confidentiality rules, particularly for employment.
Exploring accommodation options. Doing this means the following: consulting with the employee and making calls. I would add that be sure to consult with the employee first as the employee or the person with a disability as that person generally knows what works best. You can waste a lot of time trying to figure out a solution if you don’t ask the person with the disability first.
Choosing the accommodation. Choosing the accommodation can get complicated. For example, if effective communication is involved and you are outside of the employment context, you have title II and title III effective communication rules to consider. As we have mentioned previously, those two rules are not the same in that under title II, primary consideration must be given to the person with a disability preferred mode of communicating while that is not the case with respect to title III. If effective communication is not involved, then you want to conduct the interactive process described in the do’s and don’ts blog entry. Remember, with respect to title I, reasonable accommodations have to be made unless an undue hardship is involved. With respect to title II title III, reasonable modifications have to be made unless an undue burden or fundamental alteration exists.
Implement the accommodation. Doing this means doing the following: making sure all necessary steps are taken to implement the accommodation; and communicating with essential personnel about the accommodation.
Monitoring the accommodation. Doing this means doing the following: checking on the effectiveness of the accommodation over time; and maintaining the accommodation. That is, don’t take it away if it is working; and making sure ongoing communication occurs.

So, there you have it. Between this blog entry in my dues and don’ts blog entry, you now have the house and the rules of the house.

Shell Reversed on Appeal

November 4, 2019 by William Goren Leave a Comment

Before getting started on the blog entry of the week, I want to congratulate the Washington Nationals on their World Series victory where for the first time, a road team won every single game. Congratulations. I will be very curious to see whether the Washington nationals go to the White House. As everyone knows, a lot of professional sport teams are handling that different ways.

Turning to the blog entry of the week, on October 29, 2019, the Seventh Circuit decided here Shell v. Burlington Northern Santa Fe Railway Company. I have previously blogged on that case here. So, no need to go into the facts of the case. Accordingly, that means our blog entry is going to be divided into the categories of court’s reasoning and takeaways/thoughts. The reader, of course, is free to look at any and all of the categories.

Seventh Circuit’s Reasoning Reversing the District Court’s Denial of Summary Judgment

The alleged disability of obesity only works if there is evidence the obesity is caused by an underlying physiological disorder or condition. Plaintiff presented no such evidence to the District Court. For that matter, plaintiff did not present any evidence that the defendant regarded his obesity as having a physiological origin either.
Plaintiff based his claim upon medical conditions the defendant feared he would develop-sleep apnea, diabetes, and heart disease. It is true that those conditions are physical or mental impairments under the ADA. However, plaintiff did not have those impairments at the time he applied to work for the defendant, and the company had no perception to the contrary. That is, the defendant did not believe that plaintiff had any of the feared impairments at the time it refused his application.
The regarded as prong of the ADA, 42 U.S.C. §12102(1)(C), defines disability as being regarded as having a physical or mental impairment. As such, the very text of the statute encompasses only current impairments and not future ones. Regardless of how the grammar is debated, no one would understand the sentence to mean anything other than currently suffering from the disability. That is, “having,” means presently and continuously. It does not include something in the past that has ended or something yet to come.
42 U.S.C. §12102(3)(A) also mentions an individual is regarded as having a disability when he or she has been subjected to an action because of an actual or perceived physical or mental impairment. If the impairment does not yet exist, it can’t be actual or perceived.
While you can argue over whether the Dictionary Act compels a different conclusion, such reasoning can’t overcome the plain meaning of the ADA’s statutory text.
Other Circuits agree that fear of disability is not a cognizable claim. Those Circuits include: the 8th Circuit; the 11^th Circuit; the 9th Circuit; and the 10th Circuit.
The EEOC’s own interpretive guidance says the definition of impairment does not include physical characteristics or predispositions to illness or disease.
The EEOC’s Compliance Manual genetic profiling example is divorced from the text of the ADA as it is in tension with other EEOC interpretive guidance. So, that doesn’t work with respect to persuading the court to differ from the ADA’s unambiguous text.
A valid point exists about how the ADA combats accumulated myths and fears about disability and disease. However, to the extent a stereotype is involved, it is a stereotype about obesity, and obesity is only protected by the ADA if there is an underlying physiological cause. Without that underlying cause, obesity is not a disability the ADA protects.
While Congress does say that the definition of disability must be construed broadly in favor of the individual, that doesn’t give the court license to go beyond the terms of the statute. To do otherwise, would mean encroaching into the legislative branch’s responsibilities.

Thoughts/Takeaways

Reviewing my blog entry on the District Court decision reveals some interesting things. First, the District Court said that a question of fact existed with respect to whether the defendant actually believed the plaintiff was suffering from the conditions feared the plaintiff would develop. Second, the Seventh Circuit doesn’t address the District Court’s concern about the defendant being held to a lesser standard simply because it is engaging in adverse employment action before an impairment arises when there was no doubt that the defendant was acting based upon its belief that the plaintiff posed a present safety risk as a result of potential disabilities. Similarly, the District Court said that it was facially illogical and antithetical to the protections afforded by the ADA to argue that the defendant could not discriminate against individuals who actually have a disability but could discriminate against those individuals likely to have a disability but have yet to develop them.
Absolutely true that the vast majority of courts are saying that with respect to obesity there has to be an underlying impairment. I wonder if plaintiff could not borrow from the definition of major life activity in the ADA as amended per 42 U.S.C. §12102(2)(B), and argue that the way the body operates with respect to a person who is obese constitutes a physical impairment vis a vis normal cell growth, brain, neurological, etc.
Obesity is the only physical or mental impairment requiring an additional underlying physiological condition. That is, just about all of the other physical or mental impairments by their very definition have such a condition automatically contained within the diagnosis. So, even under the Seventh Circuit’s decision, would the same conclusion follow if a different disability was involved. For example, would the Seventh Circuit reach the same conclusion as the 11^th Circuit with respect to a fear of a contagious disease? What if that individual the employer feared getting a contagious disease already had his or her immune system compromised in some way to begin with?
I do think the Shell District Court’s reasoning is still worthwhile for plaintiff attorneys to use. On the plaintiff’s side, I would definitely allege an underlying physical or mental impairment whenever bringing a fear of future disability claim. I also think the myths, fears, and stereotypes angle is well worth pursuing.
No dissenting opinion in this case. So, not sure if a rehearing en banc will be sought. Regardless, I doubt plaintiff will prevail in the Seventh Circuit even if a rehearing en banc is granted considering the Seventh Circuit’s track record of late with respect to persons with disabilities.
Impossible to say how the United States Supreme Court would deal with a case like this. We currently do not have a Circuit Court split that I am aware of. So, it is entirely possible that United States Supreme Court will wait until such a split develops.
One of the labor and employment law blogs I read regularly is the OhioEmployers Law Blog authored by Jon Hyman. His blog is a very interesting perspective. He is a management side attorney. However, he isn’t afraid of talking about how employers should do the right thing regardless of what the law allows. Sure, there is a moral side to that. However, there is also a monetary side to that as well. With respect to fear of future disability cases, the law is really unclear. Does the employer really want to risk spending $250,000 to prove a point when they can obtain the use of a valuable employee in the meantime? There isn’t a day that goes by where I read articles, in such places as the Wall Street Journal, talking about how employers of all kinds simply can’t find enough employees anymore. Even if the employer takes a risk in hiring such an individual, the ADA does allow for that employer to take certain actions if they become aware of issues. For example, as we discussed here for example, should the employer become aware of issues that are job-related and consistent with business necessity, they can always insist on a medical exam.
Fear of future disability cases ultimately come down to company preference. That is, do they want to go to just where the law allows and make a defense litigation firm happy. Or, do they want to engage in preventive law by going further than the law allows initially, and then using what the law does allow them to do to deal with issues as they come up. I am pretty sure I know what Jon would say, but he can correct me if I’m wrong.

This week the United States Supreme Court will be considering a petition for cert. in the case we discussed here, which deals with the same defendant and the issue of who pays for the medical exam. I will certainly be following what happens with that case. Oftentimes, petitions for cert. get relisted. So, we may not know for a while what the United States Supreme Court elects to do in that case.

Medical Licensing Boards, Physician Health Programs, and the Lack of ADA Compliance: an Opportunity for Plaintiff Lawyers

July 13, 2019 by William Goren 6 Comments

Before getting started on the blog of the week, some housekeeping matters. First, my blog was late this week. My daughter came home from camp on Monday, and so my time is different than it usually is. Second, starting tomorrow, my family will be in Chicago visiting both sides of the family. So, no blog entry this coming week.

Today’s blog entry talks about the FSMB (Federation of State Medical Boards), and their policy on physician impairments, here, which are typically applied to medical licensing boards and to PHPs. By way of full disclosure, I have consulted on cases involving healthcare professionals who have had their licensing called into question on the basis of their disability. Those consulting efforts either got the licensing authority to back off or led to more individualized remedies. About two months ago, I was contacted by a couple of physicians, and we have been exploring how the ADA applies to the universe of Physician Health Programs and medical licensing boards. It turns out it is incredibly complicated. Eventually, we decided to focus on the FSMB Policy on Physician Impairments, which is used by PHPs to justify their actions using the imprimatur of the Medical Licensure Boards (MLBs). Physician Health Programs exist in 48 states and are tightly linked to the medical boards that enforce their actions. Their ostensible purpose is to restore impaired physicians to a non-impaired status. Here is the rub. It is quite clear that the FSMB policy was not drafted with the ADA in mind even though it is a 2012 document. So, the ADA would have been around for many many years at the time of this document. Also, the amendments to the ADA would have been around and in effect at the time of this document as well. When I went through the policy, I found 36 different instances of ADA noncompliance and/or provisions that are extremely problematic under the ADA. The physicians I have been working with on this project and myself decided a piece detailing all the 36 issues overwhelms a blog entry. So, we are going to save that for an article we will be publishing in a peer-reviewed journal to be determined. With respect to a blog entry, we decided that talking about the general concerns I had with the policy and then exploring an actual case would work better. Turns out, there is an actual case we can explore. I had a delightful conversation with Susan Haney, M.D., and she wrote about her case here. This article won a 2019 EXCEL award for best editorial/opinion piece in a magazine. So, we will use her article as a springboard after we go over some general concerns. As usual, the blog entry is divided into categories and they are: overarching theme of the FSMB policy on physician impairments; Key definitions; Dr. Haney’s case study; other case studies mentioned in Dr. Haney’s article; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Overarching Theme of the FSMB Policy on Physician Impairment

If there is an overarching theme of the FSMB policy on physician impairment it is this: physicians who are impaired or who have any potential for impairment must be fixed and restored at all costs before they can practice. I have a real problem with this. It goes directly against the underlying principles of the ADA. Whether a person chooses to have their disability fixed or not is entirely up to them. The ADA is all about integrating people with disabilities into the mainstream environment, and NOT “fixing” their disabilities. It accomplishes its goal by forcing various entities to engage in reasonable accommodations/modifications for the person’s disability. As we know, the reasonable accommodation/modification obligations must be done unless there is an undue hardship (title I) or an undue burden or fundamental alteration (title II and title III). So, the ADA is very much about working with the individual as you find them. That is not what is going on with this policy at all. Wait a minute, you might say. Maybe, this is just your disability rights perspective running amok. My response to that is the policy has a nondiscrimination clause in it. However, tellingly, people with disabilities are completely absent from that clause. Taking that and the clear lack of knowledge about what the ADA requires in terms of how the provisions are written, the only conclusion I come up with is that, according to the FSMB, disability is just wrong and needs to be fixed or cured at all costs. Like I said, the ADA doesn’t work that way nor should it.

Key Definitions

It isn’t the reasonable accommodation/modification piece that is the problem with the FSMB policy on physician impairment. Where the policy consistently runs into trouble is the lack of awareness of key ADA definitional terms. In particular, the policy clearly does not take into account that a person has a disability under the ADA if they have a record of a physical or mental impairment that substantially limits one or more major life activity or if they are regarded as having a physical or mental impairment. 42 U.S.C. §12102(1)(B),(C). Also, the policy runs into serious problems with respect to two other definitional issues. First, both title I and title II of the ADA talk about how you have to be qualified as well as a person with a disability in order to be protected by the ADA. The definition of qualified is a bit different from title I and title II. Title I, as we know, focuses on the essential functions of the job and whether the job can be performed with or without reasonable accommodations. Title II, as we also know, focuses on essential eligibility requirements and whether those requirements can be met with or without reasonable modifications. Since medical boards are title II entities, medical boards would have to be concerned about title II, but since much of what is going on here is a fitness for duty, Medical Boards and PHPs also need to know of title I’s qualified definition as well. With respect to the PHPs, the organizations actually doing the work of assessing a physician’s particular situation, the PHPs would have to be aware of title III of the ADA, which as we discussed here, does not but should contain an implicit qualified definition within it. Also, since they are doing the specific work of fitness for duty, they should be aware of qualified under title I of the ADA. Finally, the FSMB policy really breaks down when it ignores the ADA concept of direct threat. As we have discussed many times in this blog, direct threat in both title I and in title II and title III are essentially the same. However, the key difference is that direct threat under title I applies to self and others. On the other hand, direct threat under title II title III only applies to a direct threat to others. The direct threat analysis becomes very complicated in this context because you have title III and title II entities doing fitness for duty exams on behalf of a title II entity with respect to a physician who probably, but not always, works for a title I entity. As I say, going into depth as I have done over the last couple of months, becomes incredibly complicated. Every time we thought we had a handle on it, other items opened up. As I am fond of saying the ADA is a milewide and a mile deep. At any rate, we are going to save the details for an article to be published later.

III

Dr. Haney Case Study

The case study we are exploring today can be found here. Let’s go through the key points of the article. Also, as I mentioned above, I had an hour conversation with her last week, so I may bring additional facts to bear. She has given me permission to share all of this and actually encouraged me to do so. I also shared this blog entry with her prior to posting this online. Also, please note that the facts are taken as true from the article and from what she told me in her conversation. The actual facts in their entirety are surely more complicated.

Haney is a person with recurrent episodes of major depression. Until about 2008, she managed her depression privately without interference or oversight from any medical licensing board. She was never hospitalized because of mental illness and never missed a day of work due to mental illness. At the time of the occurrence, she was working for an employer of 15 or more employees (an entity covered by title I).
While on vacation in March 2006, she had a severe asthma attack requiring an extended course of a high dose of prednisone. Prescribers of prednisone and many patients know that mild dose-dependent mood and cognitive changes happen frequently during the therapy and that more severe psychiatric side effects are occasionally seen at a higher dosage level. In her case, the prednisone caused her to become clinically manic for the first time in her life and she realized that her judgment was becoming impaired. So, she reported her illness to the employer in order to arrange for a brief medical leave of absence (very unclear whether FMLA leave was properly designated at the proper time). She also contacted her primary care physician who had appropriately prescribed the prednisone as well as her personal psychiatrist and reestablished care with the previous psychotherapist. So far so good. Absolutely nothing wrong with what she did so far.
After discussing the matter with a colleague, she asked her employer whether she should preemptively report her illness to the state medical board in order to keep her professional credentials unblemished by rumors about the cause and severity of her symptoms. Big mistake here. She had already requested and was granted a leave of absence by the employer. Accordingly, the employer was on notice that they were dealing with a disability. Also, if the leave was FMLA leave and the employer had a certification policy in place, the employer could have asked Dr. Haney upon expiration of the leave to get certified as to whether she could perform the essential functions of the job at the end of the leave. Even if it was not FMLA leave, the ADA would have kicked in for the employer. If it was not FMLA leave, the employer would have had the right to ask for a fitness for duty exam so to speak to determine whether she could perform the essential functions of her job with or without reasonable accommodations because the employer would probably be able to show that such an exam was job-related and consistent with business necessity (we discussed job-related and consistent with business necessity many times before in our blog, such as here).
The minute she reported the matter to her employer, the employer required her to obtain written permission from the Oregon Board of Medical Examiners (BME) before permitting her to resume work. The employer made a mistake here as the employer immediately regarded her as having a disability. As mentioned above, if the employer was concerned about her ability to do the essential functions of the job with or without reasonable accommodations, it could have insisted on a medical exam to assess that since it probably would be able to show that such an exam was job-related and consistent with business necessity. That exam would be a narrowly focused exam to assess whether the person could do the essential functions of the job with or without reasonable accommodations without being a direct threat (see this blog entry for example). Mandating approval from the Oregon BME is a strong indication that the employer regarded her as having a disability.
She immediately called the BME’s physician health program, hoping to obtain confidential help. She was told that without a chemical component, they were not able to assist her. Instead, they recommended that she discussed this matter directly with the BME’s Medical Director,, a retired general surgeon. He explained to her that the only way she could get written permission authorizing her return to work was to open a formal board investigation into her fitness to practice medicine. Thinking she had nothing to fear, she went all in. As she realizes now, big mistake. While the Medical Board and the PHPs may not realize it, they are subject to title II (medical board and possibly the PHP), and title III (the PHP), of the ADA. Accordingly, any investigation should have been narrowly focused on the concern raised, which is not what happened here, as you will see below. Failure to conduct a focused investigation created ADA regarded as claims.
During the four month investigation, the BME would not permit her to return to work. The investigator successfully discouraged her from seeking legal assistance because of the potential for prolonging the investigation and further delaying her return to work. The BME’s staff would not allow her to appear in person or to testify in her own defense. I am not going to get into the due process claims that may be here, but I will say getting ADA knowledgeable legal counsel involved in this process as early as possible is absolutely critical. Also, getting licensing counsel involved as early as possible in this process is absolutely critical. If such attorneys had gotten involved, they may have been able to work with the investigators to make clear to them that anything beyond a narrowly focused investigation would activate regarded as claims under the ADA. Such advocacy may have gotten the BME and the PHPs to think twice about conducting a far-reaching investigation.
At the conclusion of the investigation, the BME issued a nondisciplinary public corrective action order effectively announcing her mental illness to the general public. The order required that she continue psychiatric care, maintain a physician-patient relationship with the primary care physician, and refrain from the abuse of drugs or alcohol, all of which she had been doing. The order was published in the quarterly newsletter and picked up and published by her local newspaper as well as made available on the BME’s public website despite her objections. She was also required to enroll in a 12 step addiction treatment program despite the fact that she does not have a substance use disorder. I am not a privacy attorney. Accordingly, I can’t go into whether any of those kinds of laws were violated. I do know that privacy laws vary widely from State to State. I can say that what you have here is regarded as claim in all kinds of ways. Also, there seems to be a complete lack of individual analysis as to the remedy needed. For example, being forced to enroll in a 12 step program regardless of whether an individualized analysis would suggest that was a suitable program for her is very problematic. If the ADA requires anything it is an individualized analysis.
Publication of the order was not based upon any actual threat that her illness both to the general public but rather was a standard policy. This is a real problem because direct threat under the ADA, which we have discussed many times in our blog entries, such as here, is a completely different animal and a term of art that the BME and the PHPs seem to be completely unaware of.
When she attempted to assert her right to privacy, autonomy, religious freedom, and appropriate medical mental health care, the BME threatened her with emergency suspension of her license unless she fully complied with the PHP ordered program. Couple of things here. First, no mention of the ADA being pursued and that should have been done. Second, a variety of laws have retaliation provisions in them. Third, two sets of attorneys need to be immediately involved in these things (licensing counsel who understands how the licensing system in that State works and counsel with a comprehensive knowledge of the ADA). The two together, if my experience is any guide, can be quite effective. Each State has so many quirks with their licensing system and the personalities involved and the ADA issues here are so complex, that you really do need two attorneys working together to deal with the issue.
In late 2012, the Ninth Circuit in Haney’s case, held that the State Medical Review Board was entitled to absolute immunity from civil suit for the quasi-judicial and quasi-prosecutorial acts. Pointedly, that decision said that injunctive relief would have been possible but Dr. Haney did not allege any facts showing that injunctive relief was called for. The absolute immunity piece I have not seen before, and my first reaction is that part of the opinion is an outlier. Also, it can be debated whether the acts at issue were quasi-judicial/prosecutorial in nature. I don’t see how a state entity or even a private entity, even if they are acting as a state actor, would have absolute immunity from a federal lawsuit, assuming federal claims were involved. Second, it is important to remember that injunctive relief and attorney fees are a very powerful tool even if it is not damages.
In 2007, she filed an independent complaint with the US Department of Health And Human Services Office of Civil Rights alleging violation of her civil rights under the ADA by the BME. Under pressure from both her civil suit and a Health and Human Services investigation, in mid-2008, the BME voted to allow her to withdraw from the PHP ordered program in good standing. Moral of the story: lawyers can be very helpful at any stage of the process, but the earlier you get them involved, the better.
She ultimately returned to full-time work as an emergency physician with an unrestricted medical license. However, as a consequence of the sanctions and the publication of her private medical history, she has been turned away by literally dozens of potential employers and credentialing bodies because she no longer has a clean record. All kinds of things here. First, there may be claims against the potential employers. The question for the employer is can she do the essential functions of the job with or without reasonable accommodations and is not a direct threat to others. If the employers are not giving her a chance to explain what happened, are the employer then regarding her as having a disability? If the employers have a process of screening out people without a clean record from the BME and the PHPs, are they involved in a policy practice or procedure that screens out persons with disabilities in violation of the ADA? They just might be.
She also informed me that she is under PHP monitoring basically for the rest of her career. One wonders if such monitoring does not create a regarded as claim that might lead to a future injunctive relief filing.

Other Case Studies Mentioned by Dr. Haney in Her Article

For purposes of this section, all facts are taken from Dr. Haney’s article and are taken as true. The actual facts will of course be more complicated.

In 1998, a New York physician was initially denied a California state medical license due to his self-disclosed history of mental illness. After California refused to license him, New York revoked his license there as well. After considerable outcry from disability rights advocacy groups, he was eventually granted a probationary license in California, subsequently unrestricted, where he currently practices. I have seen this before where a person with a record of a disability that is being completely managed is gone after by licensing boards. The focus, such as we discussed here, needs to be on behavior and not on the record of the disability. If you take adverse action based upon the record and not upon the behavior, that is disability discrimination.
In 2004, a Washington physician published her first hand account of working with bipolar. 10 years later, that Physician was sanctioned by her medical board following a retaliatory complaint from a former patient arising from a custody dispute over a dog. I don’t know the facts, but sounds like a potential “record of,” claim to me.
Physicians with any history of mental illness may be automatically assumed by the medical licensing board to have an occupational impairment based simply upon their diagnosis. In fact, one of the provisions in the FSMB policy on physician impairments very much suggests this as a possibility. Automatically assuming a physician is a direct threat to others without conducting a focused individualized analysis relying on the most current medical knowledge and/or the best available objective evidence is disability discrimination.

Takeaways

Clearly, licensing boards and PHPs are in need of knowledgeable ADA counsel reviewing their operations and this particular policy. As I mentioned, expect a paper on this at some point. In the meantime, an opportunity exists for plaintiff attorneys to get fees.
Any physician going into this system needs to get licensing counsel and an attorney with a comprehensive knowledge of the ADA involved immediately. Do not wait. The sooner appropriate attorneys are involved, the more likely through the use of extremely knowledgeable licensing and extremely knowledgeable ADA counsel, the train will be able to be stopped. Also, the more likely resources will be available to pay for the necessary substantive expertise
Louise Andrew MD JD and Ron Chapman JD have put out a nice little publication on do’s and don’ts with respect to this whole PHP system.
This stuff is all really complicated. PHPs are generally 501(c)(3) organizations. However, as a service establishment, they are subject to title III of the ADA per 42 U.S.C. §12181(7)(F). Where an entity covered by title III of the ADA violates the ADA, the plaintiff can get injunctive relief and attorney fees. Damages are not a possibility. With respect to the medical licensing boards, which are state entities, if a showing of deliberate indifference, which we discussed here, can be made, then damages are available. Also, if the title III entity takes federal funds, then damages are in order as well under §504 to Rehabilitation Act.
With respect to damages, that may be a tough fight for a couple of reasons. First, sovereign immunity or other immunities may be in play. As we have discussed many times before, such as here and here, sovereign immunity is an incredibly complicated area because the equal protection class that persons with disability fall into is never fixed. Also, whether a State has waived sovereign immunity will vary from State to State. Second, even though PHPs are title III entities an argument exists under this case that PHPs are state actors. As such, they would be subject to damages under title II of the ADA. Unclear whether a state actor, a PHP, would be able to avail themselves of sovereign immunity. Regardless, sovereign immunity does not protect against prospective injunctive relief claims.
The employers of doctors are not off the hook either. Under title I of the ADA should an employer have reason to believe through behavior an issue is involved with respect to whether that physician can do the essential functions of the job with or without reasonable accommodations, they have the ability to insist on a medical exam if they can show that the medical exam is both job-related and consistent with business necessity. Automatically referring a physician into the PHP system, may wind up running the employer into a regarded as claim. If there is no behavior and the employer refers someone with a record of a disability into the system, that is problematic as well. Finally, were an employer to order a medical exam based on an anonymous tip, they may run themselves into problems, as we discussed here. Of course, medical licensing boards and PHPs are not title I entities, but the principle is instructive with respect to ADA compliance.
The PHP evaluations are comprehensive, but why? Performing a comprehensive evaluation in every case leads to regarded as claims. For that matter, so does the lack of an individual analysis.
Do look for a paper, but since it will be peer-reviewed, it may take some time for that to be published.
The sooner the FSMB and PHPs can understand the ADA and get away from fix a disability at all costs mentality, the less liability they are going to have.
Not all physicians are employees. For those physicians who are not, how does the ADA apply to them as title I of the ADA does not apply because they are not an employee. So, what mechanism exists for ADA protection for such individuals. First, there is this case, which holds a physician independent contractor can have a claim under title III. Second, since medical licensing board and PHPs are covered by title II (MBE), and by title III and possibly title II (PHP), fitness for duty is involved, I would argue title I’s rules with respect to otherwise qualified/qualified must apply.
There may be overlapping regulatory jurisdiction depending upon the entity involved. For instance, you may see Health and Human Services, Department of Justice, or the EEOC all having jurisdiction depending on the situation.
If a lawyer representing a physician headed into or in the PHP process already is not using the ADA in his or her advocacy on behalf of the client, then per this blog entry , that lawyer, in my opinion, is committing legal malpractice.
Did I say legal counsel legal counsel legal counsel with comprehensive knowledge about the ADA is critical. As soon as possible is important as unless a disability rights advocacy group takes on the matter, any representation may be hourly since damages can be very uncertain with sovereign immunity and other immunity defenses. A physician also is more likely to have resources early on in the process. Also, it is possible that your malpractice insurance may or may not offer coverage. On this, the physician may need an insurance coverage attorney to argue over any coverage distinctions based upon disciplinary proceeding v. assessment of an illness. At any rate, exhausting the possibility of malpractice insurance coverage is worth exploring as such coverage could make a huge difference to the physician.

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