Philip J. Candilis, MD; Daniel T. Kim, MA, MPH; Lois Snyder Sulmasy, JD; for the ACP Ethics, Professionalism and Human Rights Committee *
Acknowledgment: Philip J. Candilis, MD, received compensation from ACP for consulting on and coauthoring the manuscript. The authors and the ACP Ethics, Professionalism and Human Rights Committee thank peer reviewers Chris Bundy, MD; Humayun J. Chaudhry, DO; Paul H. Earley, MD; John A. Fromson, MD; and P. Bradley Hall, MD, and the many ACP leadership and journal reviewers of the paper for helpful comments on drafts, as well as Kathy Wynkoop of the ACP Center for Ethics and Professionalism.
Financial Support: Financial support for the development of this paper comes exclusively from the ACP operating budget.
Disclosures: Disclosures can be viewed at www.acponline.org/authors/icmje/ConflictOfInterestForms.do?msNum=M18-3605.
Corresponding Author: Lois Snyder Sulmasy, JD, Director, ACP Center for Ethics and Professionalism, American College of Physicians, 190 N. Independence Mall West, Philadelphia, PA 19106; e-mail, email@example.com.
Current Author Addresses: Dr. Candilis: Interim Director of Medical Affairs, Saint Elizabeths Hospital, 1100 Alabama Avenue SE, Washington, DC 20032.
Mr. Kim: Senior Associate, ACP Center for Ethics and Professionalism, American College of Physicians, 190 N. Independence Mall West, Philadelphia, PA 19106.
Ms. Snyder Sulmasy: Director, ACP Center for Ethics and Professionalism, American College of Physicians, 190 N. Independence Mall West, Philadelphia, PA 19106.
Author Contributions: Conception and design: D.T. Kim, L. Snyder Sulmasy.
Analysis and interpretation of the data: P.J. Candilis, D.T. Kim, L. Snyder Sulmasy.
Drafting of the article: P.J. Candilis, D.T. Kim, L. Snyder Sulmasy.
Critical revision of the article for important intellectual content: P.J. Candilis, D.T. Kim, L. Snyder Sulmasy.
Final approval of the article: P.J. Candilis, D.T. Kim, L. Snyder Sulmasy.
Provision of study materials or patients: P.J. Candilis.
Administrative, technical, or logistic support: D.T. Kim, L. Snyder Sulmasy.
Collection and assembly of data: P.J. Candilis, D.T. Kim.
Physician impairment, the inability to carry out patient care responsibilities safely and effectively, is a problem of functioning. However, the presence or treatment of a potentially impairing illness or other condition does not necessarily imply impairment. This American College of Physicians position paper examines the professional duties and principles that should guide the response of colleagues and the profession to physician impairment. The physician should be rehabilitated and reintegrated into medical practice whenever possible without compromising patient safety. At the same time, physicians have a duty to seek help when they are unable to provide safe care. When identifying and assisting colleagues who might be impaired, physicians should act on collegial concern as well as ethical and legal guidelines that require reporting of behavior that puts patients at risk. Health care institutions and the profession should support practice environments in which patient safety is prioritized and physician wellness and well-being are addressed. Physician health programs should be committed to best practices that safeguard patient safety and the rights of physician-patients.
AMA urge state medical boards to refrain from asking applicants about past history of mental health or substance use disorder diagnosis or treatment, and only focus on current impairment by mental illness or addiction, and to accept ‘safe haven' non-reporting for physicians seeking licensure or relicensure who are undergoing treatment for mental health or addiction issues, to help ensure confidentiality of such treatment for the individual physician while providing assurance of patient safety (42).
Nicholas D. Lawson, MD, J. Wesley Boyd, MD, PhD
Georgetown University Law Center, Cambridge Health Alliance/Harvard Medical School
June 11, 2019
Why Do Physician Health Programs Not Want Physicians to Be Aware of Their Employment Rights?
The American College of Physicians (ACP) just released a position paper on state physician health programs (PHPs) (1). The authors claim to have the best interests of physicians at heart. But this is difficult to believe when they fail to inform physicians of their rights under the Americans with Disabilities Act (ADA) to be free from unwarranted medical inquiries and referrals to PHPs for evaluations (2,3). We suspect that the repeated failures of state PHPs (as well as associated medical boards) to notify physicians of their ADA rights relates in part to the fact that the ADA provides physicians with clear rules that would prevent many unwarranted referrals to these programs (3).
The authors also discuss physicians’ duties of “self”-regulation, but given the authors’ praise for and reliance upon state PHPs, we suspect they mean regulation by PHPs (1). Additionally, when the authors refer to physicians’ accountability to “society,” we suspect what they really mean is accountability to PHPs (1). The authors also tout the high success rates of PHPs but fail to note that almost all of the statistics about PHP outcomes are written by individuals who run or work in PHPs and often fail to account for individuals who drop out of treatment with a PHP or who commit suicide while working with a PHP (4).
The authors are asking for a level of influence and intrusion into the lives of physician-employees that we think most would view as problematic (1-4). The authors claim to have an “intervention” for “disruptive behavior” (1), which could easily result in mislabeling of physicians as impaired when they take a stand for better care (2,3). They also frame referees as “in denial,” grant immunity to anyone providing referrals to PHPs, and ask for state PHPs, medical boards, and societies to play a key role in “educating” medical trainees about PHPs and physician impairment (1).
That “education” would almost certainly include misinformation about the appropriate rules that relate to inquiries and referrals to PHPs for evaluations (2-4). It would also likely include PHPs’ descriptions of “impairment” or “reasons to refer” other physicians. In one of our studies, we found that more than 95% of the general population in full-time employment endorses multiple descriptions of “impairment” on a typical PHP list of 25 descriptions, and 10/25 (40%) on average (2). The descriptions are so broad they make almost anyone susceptible to being branded as “impaired” (2).
For these and other reasons, we disagree with much of the ACP position paper about PHPs.
1. Candilis PJ, Kim DT, Sulmasy LS. Physician impairment and rehabilitation: reintegration into medical practice while ensuring patient safety: a position paper from the American College of Physicians. Ann Intern Med. 4 June 2019.
2. Lawson ND, Boyd JW. How broad are state physician health program descriptions of physician impairment? Subst Abuse Treat Prev Policy. 2018;13(1):30.
3. Lawson ND, Boyd JW. Do state physician health programs encourage referrals that violate the Americans with Disabilities Act?. Int J Law Psychiatry. 2018;56:65-70.
4. Lawson ND, Boyd JW. Flaws in the methods and reporting of physician health program outcome studies. Gen Hosp Psychiatry. 2018;54:65-6.
Marilyn J. Heine, MD, FACP
Drexel University College of Medicine
July 19, 2019
The Importance of Patient Confidentiality in Substance Use Disorder
Physician Impairment and Rehabilitation  is commendable. Importantly, it emphasizes the essential role of confidentiality in the treatment of physicians who have substance use disorder (SUD). The privacy safeguards advocated in the Position Statement are embodied by 42 CFR Part 2 (Part 2); not the Health Insurance Portability and Accountability Act (HIPAA). With certain exceptions, patient consent is required for disclosure under Part 2, while under HIPAA patients’ consent is not required to share their information for treatment, payment, and operations purposes. This is a critical distinction.As policymakers consider revision of privacy requirements, it is essential to recognize that if regulations for SUD were lowered to the level of HIPAA, several hazards would ensue from unconsented disclosure:1. Mistrust: Threats to the physician-patient relationship that relies on trust. 2. Legal consequences and stigma: Risks to SUD patients’ child custody, job, housing, insurance; and increased exposure to stigma. This fractures a patient's support system, jeopardizes the stability of recovery, and increases risk of relapse.3. Mental illness exacerbation: Many SUD patients have a co-occurring mental illness, often a driver for the SUD. Breach of trust risks exacerbation of the co-occurring mental illness.4. Disincentive to treatment: The National Study on Drug Use and Health survey showed that fear of exposure deters patients from entering treatment. When patients forego treatment, there is increased risk of drug overdose and death. 5. Medical liability: Patients who suffer loss of child custody, job, housing, or insurance due to unconsented disclosure can sue for negligence or breach of an implied contract under state law, depending on state statute.6. Inequity: Healthcare disparities increase when patients who can afford to self-fund treatment can avoid disclosure to insurers under HIPAA while others are vulnerable. 7. Disincentive for physicians to address impairment: Without assured privacy, physicians who are treated for SUD risk their livelihood, criminal sanctions, reputation damage, medical liability and related National Practitioner Data Bank reports.8. Confusion between federal and state law: Use of a HIPAA standard will not pre-empt state law that is more restrictive, but will exacerbate confusion about how SUD information can be shared.9. Adverse coverage determinations: With more access to patient data, insurers may have easier opportunity to deny coverage to individuals with SUD. Even if an individual pays out of pocket at a Part 2 facility, re-disclosure to insurers may occur.10. Law enforcement access: Use of a HIPAA standard would likely impact how information is added to prescription drug-monitoring programs (PDMPs). Law enforcement access to PDMP data has potential legal consequences for patients.The American College of Physicians should advocate for the confidentiality safeguard of Part 2 to remain strong. This would help ensure that this Position Statement can be effectively implemented.1 Philip J., MD; Daniel T. Kim, MA, MPH; Lois Snyder Sulmasy, JD. Physician Impairment and Rehabilitation: Reintegration Into Medical Practice While Ensuring Patient Safety: A Position Paper From the American College of Physicians. Ann Intern Med. 2019;170(12):871-879.2 https://www.childwelfare.gov/pubPDFs/drugexposed.pdf (accessed July 11, 2019).3 https://corporate.findlaw.com/litigation-disputes/the-americans-with-disabilities-act-and-current-illegal-drug.html4 https://www.huduser.gov/portal/periodicals/cityscpe/vol15num3/ch2.pdf (accessed July 11, 2019).4 https://www.ncbi.nlm.nih.gov/pubmed/23490450 (accessed July 11, 2019).5 https://www.samhsa.gov/data/sites/default/files/cbhsq-reports/NSDUHFFR2017/NSDUHFFR2017.pdf (accessed May 29, 2019).Additional references are available upon request.
Philip J. Candilis, MD, DFAPA, Lois Snyder Sulmasy, JD
George Washington University School of Medicine, American College of Physicians
August 21, 2019
Conflict of Interest:
See COI disclosures published with the article
IN RESPONSE:We appreciate reader online comments about the ACP’s paper on physician impairment and rehabilitation (1). Comments by Drs. Lawson and Boyd selected by the editors for response propose a novel legal interpretation of the Americans with Disabilities Act (ADA) without supporting precedent or legal scholarship. The ADA’s employment discrimination protection requires an individual to be “qualified” (to perform essential work requirements with or without reasonable accommodation) and not pose a “direct threat” to the health or safety of others. Legal decisions have deferred to institutional judgments when a clinician is not qualified, or poses a risk to others (2). In fact, the ADA permits employers to “make inquiries” into an employee’s ability to perform job-related functions. Employers do not violate the ADA when requiring pilots to be alert, surgeons to be dexterous, and firefighters to meet physical requirements. None may use illegal substances, which is why the ADA does not apply in those circumstances either. In addition, the idea that physicians referred to PHPs are disabled by these conditions is concerning. Labeling and stigmatization are what the medical community and PHPs seek to avoid. PHPs help physicians address many conditions before they become disabling, from anxiety to marriage problems to transitory dysregulation of chronic illnesses. Referrals can be necessary before impairments progress. Indeed, individualized evaluations by PHPs are a mechanism for assuring that discrimination is not occurring (2). The impression that PHP studies do not account for persons who drop out of monitoring also requires correction. Interested readers may review studies such as DuPont et al (3) or Knight et al (4) that clearly describe those individuals. ACP is supportive of programs and agencies who study their outcomes, undertake peer review, and publish their results. This remains the standard for improving services while serving physicians and patients alike.The ACP position paper strikes a necessary balance between patient safety, physician rights, and treatment needs. Society privileges physicians; it is only in fulfilling the societal duties of ethics and professionalism that medicine can claim the privilege of self-regulation. Finally, we caution readers about unsubstantiated assertions in the comments like those connecting physician suicide to monitoring by a PHP. Such assertions discourage physicians from seeking help and do not meet empirical standards. Rather than relying on what the commentators say they “suspect,” we refer readers to the guidance in the position paper. Philip J. Candilis, MD, DFAPADirector of Medical AffairsSaint Elizabeths HospitalProfessor of Psychiatry and Behavioral SciencesGeorge Washington University School of MedicineWashington DCLois Snyder Sulmasy, JDAmerican College of PhysiciansPhiladelphia, PAReferences1. Candilis PJ, Kim DT, Sulmasy LS. Physician impairment and rehabilitation: reintegration into medical practice while ensuring patient safety: a position paper from the American College of Physicians. Ann Intern Med. 2019;170:871-9.2. Rothstein L. Impaired physicians and the ADA. JAMA. 2015;313:2219-20.3. DuPont RL, McLellan AT, White WL, Merlo LJ, Gold MS. Setting the standard for recovery: Physicians’ Health Programs. J of Substance Abuse Treatment. 2009;36;159-71.4. Knight JR, Sanchez LT, Sherritt L, Bresnahan LR, Fromson JA. Outcomes of a monitoring program for physicians with mental and behavioral health problems. J. Psychiatric Practice. 2007;13:25-32
Candilis PJ, Kim DT, Sulmasy LS, for the ACP Ethics, Professionalism and Human Rights Committee. Physician Impairment and Rehabilitation: Reintegration Into Medical Practice While Ensuring Patient Safety: A Position Paper From the American College of Physicians. Ann Intern Med. 2019;170:871–879. [Epub ahead of print 4 June 2019]. doi: https://doi.org/10.7326/M18-3605
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Published: Ann Intern Med. 2019;170(12):871-879.
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