Are PHPs Still In Our Corner?

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Part of the Break Point Special Report
To read Don’t Hold It Against MeClick here
To read Confronting the Imposter WithinClick here


PREFACE
May is mental Mental Health Month. It also marks 10 years since EPM’s first eye-opening physician mental health survey. Back in 2006 we found that 85% of respondents who had experienced depression did not report this to licensing authorities, employers, or credentialing agencies. Now, 10 years later, we want to take stock and recognize how many physicians still struggle with mental health issues.

Depression is at least as common in the medical profession as in the general population, affecting an estimated 12% of males and 18% of females. Depression is even more common in medical students and residents, with 15-30% of students screening positive for depressive symptoms. A 2011 survey of 50,000 practicing physicians and medical students in Australia demonstrated a dramatically increased incidence of severe psychological distress and a twofold increased incidence of suicidal ideation in physicians compared with the general population.

Because of the stigma often associated with depression, self reporting likely underestimates the prevalence of the disease in both of the above populations. Indeed, although physicians seem to have generally heeded their own advice about avoiding smoking and other common risk factors for early mortality, they are decidedly reluctant to address depression, a significant cause of morbidity and mortality that disproportionately affects them. Depression is also a leading risk factor for myocardial infarction in male physicians.

Suicide is a very real risk in any population struggling with depression, but physicians present a particular risk. We know that physicians have the highest risk for suicide of any occupation, and the reasons are relatively clear; depression among physicians often goes untreated, and physicians have both knowledge of, and access to lethal means.

Physicians are demonstrably poor at recognizing depression in patients, let alone themselves. Furthermore, we are notoriously reluctant to seek treatment for any personal illness. A recent survey of American Surgeons revealed that although 1 in 16 had experienced suicidal ideation in the past 12 months, only 26% had sought psychiatric or psychologic help. There was a strong correlation between depressive symptoms, as well as indicators of burnout, with the incidence of suicidal ideation. Over 60% of those with suicidal ideation indicated they were reluctant to seek help due to concern that it could affect their medical license.

These concerns are well founded. See accompanying articles regarding the dangers of dealing with Physician Health Programs (PHPs), which were designed to protect physicians from disciplinary actions by Medical Licensure Boards (MLBs) but whose long arm relationship with boards has noticeably shortened in recent years in parallel with the increasingly lucrative business of recovery. See also Dr. Louise Andrew’s Medscape article on physician depression and suicide.


For years I praised Physician Health Programs (PHPs) as being a safe resource for doctors suffering from depression and anxiety. However, in light of recent reports, PHPs are looking more like a liability than an asset.

Ten years ago I wrote an article for EPM called “PHP’s Are in Your Corner”. We had just done a survey of EPM readers on physician depression, and the results were striking. For instance, of those physician respondents who stated that they had struggled with depression, 41% decided to not seek treatment.

PHPs grew out of hospital and state medical society “impaired physician committees” staffed by physicians, themselves in recovery, to assist other physicians recovering from alcoholism and addictions while retaining their own ability to practice medicine. These organizations were designed to assist and advocate with the medical board for physicians having significant and potentially impairing substance abuse problems. They do not have independent jurisdiction over physicians, but medical licensure boards (MLBs) have delegated a great deal of authority to them by backing up the PHPs with the pow- er of license revocation through a so called “contingency management” contract system. If the physician does not comply with each and every demand by the PHP, the MLB will typically suspend or revoke the physician’s license, sometimes without a hearing.

For many years, I represented ACEP as liaison to the Federation of State Medical Boards (FSMB) and occasionally to the Federation of State Physician Health Programs (FSPHP) Ten years ago, I really believed that Physician Health Programs existed solely to benefit and protect physicians.

A decade later, and my convictions have changed dramatically. Horror stories that colleagues related to me while I chaired ACEP’s Personal and Professional WellBeing Committee cannot all be isolated events. For example, physicians who self-referred to the PHP for management of stress and depression were reportedly railroaded into incredibly expensive and inconvenient out of state drug and alcohol treatment programs, even when there was no coexisting drug or alcohol problem. Even those who self referred for iatrogenic drug addiction and were perfectly compliant and capable of outpatient treatment were forced into prolonged inpatient treatment. The reasons have only recently become clear to me.

Greg Horvath’s “The Business of Recovery” reveals that the drug and alcohol recovery industry is now a $34B endeavor in the US. It is very clear from a recent NC State audit of the North Carolina PHP that it entered into prohibited business arrangements with “selected” exclusive out-of-state rehabilitation treatment programs. Such rehab programs, purportedly selected because of their experience with physician clients, were, according to the NC state auditor, actually selected without ANY specific criteria — other than perhaps their willingness to take the PHP-proffered diagnosis at face value without independent verification. (I have learned of one facility whose contract with the NCPHP was terminated because of refusal to agree to this stipulation).

With suspiciously large budgets and incredibly well paid executives in these “nonprofit educational charitable organizations”, there is every reason to suspect that prohibited business relationships with rehabilitation programs may be a pattern of practice with most if not all PHP’s across the country, propounded by both the FSPHP and its progenitor organization, the American Society of Addictions Medicine (ASAM). The NC Audit cited, as evidence of prohibited business dealings, NCPHP retreats funded by the “selected” facilities and scholarships paid by the NCPHP back to the same facilities. I myself observed lavish dinners being hosted by these “selected” facilities while attending FSPHP meetings. None of this of course proves impropriety, but it would help to explain why physicians are almost invariably mandated into inpatient “rehab” for 90 days—-at a cost of up to $150,000 in cash, when non-physicians are often “cured” at 28 days, or whenever their insurance runs out.

A PHP may contact you and request a meeting if a colleague, a disgruntled patient, or a vengeful spouse has reported that they suspect that you might be impaired. You may also be called for a meeting if you have contacted a PHP for assistance with a stress, anxiety, burnout, depression or substance issue. What should you do if you have been contacted?

First, “lawyer up”. Don’t say to yourself that “I have done nothing wrong, I have nothing to fear.” You have everything to lose if you trust that the caller is from the PHP and is “here to help you.” More than one physician has completed suicide in the clutches of some of these PHPs and their “preferred” rehabilitation centers. Douglas Talbott’s Ridgeview Institute in Atlanta was the most notorious in this regard; the Atlanta Constitution did a series of articles about these dead doctors and one Dr. Leon Masters who successfully sued Talbott for false imprisonment and fraudulent diagnosis of alcohol dependence.

Second, do not meet with the PHP until you have been thoroughly briefed by your lawyer on what to expect in the PHP interview. Ideally the lawyer would be one who has experience in dealing with PHPs or MLBs, but preferably NOT one who has previously worked with either agency, because of the possibility of conflict of interest.

Third, if after contacting the PHP your lawyer informs you that there is any reason to believe that drug or alcohol abuse might be considered an issue by the PHP in your case, consider obtaining random, private monitored forensic testing for substances of abuse even PRIOR to your interview. A lawyer with experience in employment law and federal substance abuse statutes would be in a position to help you to find such a monitoring program.

Fourth, if your lawyer determines that a mental health issue is being alleged, obtain one or more independent evaluations with a psychologist, psychiatrist, or a physician specializing in addiction psychiatry. These evaluations will be at your own expense, but are less likely to be biased against you. Before you leave the office after such an evaluation, request a copy of the preliminary evaluation, BEFORE any communication is made between the independent evaluator and the PHP.

Fifth, have your counsel obtain the state statutory support for the PHP and the policy manual so that you can be  prepared for what is to follow. You are unlikely to be able to obtain the latter without the assistance of counsel, as you will likely be told that they are proprietary.

Finally, prepare for your meeting just as you would for an income tax audit. The PHP evaluator may not be a physician, but will have the backing of the executive director, who usually is a physician. Be professional and cooperative, but do not volunteer information and do not answer any question that might possibly cast you in a bad light or open the door to more intrusive examinations. For example, some PHPs and “select evaluation/treatment centers” still use polygraphs even though they have been thoroughly debunked by the AMA and US courts as “junk science”. Remember that, just as with a criminal investigation, everything you say can and could well be used against you.

PHPs may require you to sign various consents which can deprive you of your medical privacy. Take photos of these documents and send them to your attorney before signing them, if possible. If necessary, reschedule the interview for another day so that your attorney can be sure that your due process and privacy rights are not abrogated by the consents. Ask and record the answer to the question “what will happen if I cannot in good conscience sign these documents?” After you have signed the documents, demand copies of them for your records.

After your evaluation, demand a copy of the preliminary findings. If these are refused, ask the basis for the refusal and record in exact detail what you are told and by whom. If the reason given is that the evaluation is in the nature of “Peer Review”, have available highlighted copies of both federal and state statutes relating to peer review where it is clearly stated that you have the right to know the content of the review and the opportunity to respond. (42 USC S 11112b and corresponding state laws) If you are still refused, report this fact promptly to your attorney so that the findings can be obtained under color of law.

In many states, you will be subjected to drug testing at the time of the interview. Demand to know exactly which substances are being tested for, what laboratory is being used, whether the test is FDA approved, and whether the testing is “forensic” (which would require strict chain-of-custody procedures be followed) or “clinical” (which would mean that no such protections are in place, and would also mean that the person ordering the tests is practicing medicine, NOT conducting peer review). If you are told that this information is proprietary, ask why, and carefully record the response you are given. You will not be given a choice of laboratory or whether the testing being done is forensic or clinical, but this can greatly affect any subsequent legal proceeding based on the results. Keep VERY detailed notes of this entire process, making a dictated note as soon as you are in a private setting. In fact you should be more obsessive about this record keeping than almost any other professional setting you might ever encounter.

Whatever is recommended after the evaluation, do not comply until you have checked with your attorney as to all of the potential ramifications of cooperation, or conversely of resistance to the demands of the PHP. If you choose not to comply with the PHP recommendations, you may be threatened with immediate reporting to your MLB, which could result in suspension of your license. Just as in a crime drama, you are entitled to one phone call before signing away your rights, and that call should be to your attorney.

Many physicians blindly stumble through the PHP enrollment process thinking that they should not “rock the boat” lest there be repercussions. Most PHPs utilize this misperception to their advantage to pressure participants into giving up their rights. Don’t fall for it. If you don’t “rock the boat”, you may very well find yourself “in the drink”.

ABOUT THE AUTHOR

EXECUTIVE EDITOR Dr. Andrew is a past chair of the ACEP Wellness Committee. Dr. Andrew founded MDMentor.com

5 Comments

  1. Dr. Andrew’s piece is exactly on point. As is indicated in the Wes Boyd MD piece (on QuantiaMD), the vast majority of physicians don’t have a clue about what PHPs are or how they operate. Same applies to MLBs. Further, most presume that the process is a fair one and that, even if not, you can always extract yourself with a decent lawyer. All of these are dangerously false assumptions, as is increasingly coming to light in the abundance of articles about these agencies’ apparent malfeasance and in at least one class action lawsuit in Michigan against both its MLB and the PHP. (see 2:15-cv-10337-AJT-RSW) (The recounting of the systematic pattern of alleged malfeasance in the complaint is chilling.)
    Unfortunately, most (and this pertains to both MLBs and PHPs) operate with utterly no governmental oversight and yet are allegedly covered by state immunity for their actions. Such immunity is nearly impenetrable in both the state and federal court system, rendering nearly all challenge to their actions futile – and exceedingly costly.
    Therefore, it’s vital that state and national medical societies and specialty societies take a much closer look at this, and listen to their members who may have horror stories to tell. At first, they may be simply too Kafkaesque to believe, but as Dr. Andrew points out, the more you hear, the more you conclude this many docs can’t possibly all be wrong about this malignant operation, conducted as it is in the names of patient safety and physician wellbeing.
    One would also hope that both FSMB and FSPHP are honestly investigating these abominations as they are antithetical to the fundamental principles of professionalism and ethics of both the medical and legal professions.
    Some are starting a Physician Advocacy Coalition to more thoroughly study these issues and serve as a resource to physicians and their counsel. Feel free to contact me if you’d like more information or to help support the operation of such a non-profit program.

  2. Louise Dotter on

    Good recommendations but no one in a state of depression, drug impaired or otherwise, could possible be expected to put out this kind of focused attention while still trying to maintain medical, family, and civic duties. I’m beginning to understand the high rate of suicide among doctors! All of you doctors have my complete and profound sympathy for the seemingly targeted attacks on MD’s from so many different ‘corners’. Reminds me of the 60’s when the teaching profession was put in the spotlight and reduced from a noble profession to a robotic “teach-to-test” mechanical ‘job’. Good luck – some of us understand!

  3. Your article is excellant. I believe that the recovery facilities are involved in corrupt activities. Who else is benefitting from the money? Is it someone who does the referrals? I am sure that it is not just the recovery center. What about someone in the PHP/MLB The lavish dinners are not a surprise. I am sure more corrupt activities occur under the table, so to speak. I witnessed lavish dinners and trips years ago by corrupt pharmaceutical companies(I was actually on these trips with a friend) but that was before getting in into the medical field. Now there is the corrupt recovery centers. I am sure this has been happening for some time though and not new but has become more corrupt .This is all so heartbreaking.They don’t mind ruining lives and preying on the vulnerable. Obviously they have no conscience. There should be a big investigation into these centers and the PHP. I am sure there are some surprising links. It is not surprising Doctors, lawyers, nurses, pharmacists and others in the medical fields are terrified of seeking help. It is an unjust abusive and stigmatizing system.

  4. Corrupt addiction treatment is a big business and “landing” a physician who is sentenced by a PHP to treatment is immensely profitable. See The Atlantic article on this economics and shady ethics of the industry:
    http://www.huffingtonpost.com/entry/addiction-treatment-industry-ethics_us_575f3fa5e4b0e4fe5143865c?section=
    In your state, the PHP’s may serve another function that is immensely useful to the medical boards: skirting due process that the boards may be required to provide by the outsourcing of board regulatory functions to these private contractors. If a medical board wants to sanction a physician but not not want to provide due process, delegating a PHP to tailor a report to the board that it can act on in the interest of a danger to the public health and safety is an ideal way to accomplish this end.
    Interestingly, the states with the richest cornucopias of licensed quack providers (naturopaths, homeopaths, and chiropractic “subspecialists”) are the ones most likely to go out of their ways to sanction physicians for disruption, depression, and alleged substance abuse.

  5. Boards of Nursing and assistance programs for nurses operate the same way. Some states are better than others, but most have at least a fairly comfortable working relationship with each other.

    But little Due Process. It’s all about protecting the public, in whatever draconian way pleases the Boards.

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