I was really busy this week on a pressing client matter. So, the blog entry for the week is a bit late, which occasionally does happen. This week’s blog entry is a response to a push by those very much leading the professional recovery program efforts to expand those efforts to include cognitive screening for all physicians no matter what the situation. The article comes from an article written by Christopher C. Bundy, MD, MPH and Betsy White Williams, PhD, MPH entitled, “Cognitive Screening for Senior Physician: Are We Minding the Gap?” The article, which was published in the Journal of Medical Regulation and can be found here, concludes by saying that, “proactive, mandatory health screening for all physicians would be more effective than age-based screening and mitigating patient safety risk due to performance deficits, while also creating individual and systemic accountability aimed at health protection and workforce sustainability.” The point of this blog entry is to go through various pieces of that article and point out that the article’s suggestions are not in accordance with the provisions of the ADA or §504 the Rehabilitation Act. As usual, the blog entry it divided in the categories and they are the medical model of disability and point counterpoint. Considering the layout of the blog entry, you are probably going to want to read the whole thing.
The Medical Model of Disability
Professional recovery programs working in conjunction with medical licensing boards operate on the medical model of disability. Just what is that model? The best description I have seen of that model is from Prof. Kat MacFarlane’s forthcoming article in the Fordham Law Review, which is entitled, “Disability without Documentation, here.” Her view is that the ADA should operate more like the religious accommodation world does when it comes to accommodating people with sincerely held religious beliefs. When it comes to accommodating sincerely held religious beliefs, you assume that religious belief is sincere and work from that. Whereas with the ADA, to some extent there is an assumption that the disability is not something to take on face value but must be confirmed to some degree. It is a very interesting approach, and I commend the article for anyone to read. A couple of things that I will point out are: 1) the process of confirming disabilities has gotten much better for persons with disabilities with the advent of the amendments to the ADA and their final accompanying implementing regulations; and 2) employers are clamping down on their employees that do not want to get vaccinated. So, I am seeing the religious accommodation process moving away from the assumption that the belief is automatically sincere. I have been reading reports of employers putting in systems to confirm, much in the way a disability is confirmed, a sincerely held religious belief.
All this said, Prof. MacFarlane does a wonderful job of explaining the medical model and how it operates, which is very much the way the professional recovery programs working in conjunction with medical licensing boards go about their business. More specifically, Prof. MacFarlane says in her forthcoming article the following:
“The ADA was intended to reject the medical model, which focuses on diagnoses, treatment, and rehabilitation. The medical model sidelines individuals with disabilities, giving them little say over their own identity. Prior to the ADA, federal 45 29 C.F.R. § 1630.2(o)(3) (emphasis added). 46 Id. 47 Flake, supra note 34, at 75 (quoting 29 C.F.R. app. § 1630.9). 48 Id. at 76–77. 49 Id. 50 Id. 51 29 C.F.R. § Pt. 1630, App. § 1630.9. 52 Id. Electronic copy available at: https://ssrn.com/abstract=3781221 8 disability law and policy “focused on changing, fixing, or training the disabled person to help him overcome his disability and adapt to the ways of ‘normal’ society.”53 Disability was treated as a biological condition. Pursuant to the medical model, a disabled individual is helped through either “rehabilitation efforts to enable the individual to overcome the effects of the disability, or medical efforts to find a cure for the individual.”54 The medical model perceives an individual’s disability as “personal misfortune” with no social cause.55 The medical model of disability grants tremendous power to healthcare professionals. Physicians “validate the existence of disability” and serve as gatekeepers to social assistance.56 Pursuant to the medical model, “[t]he individual’s own subjective experience of impairment or limitation is irrelevant unless it can be professionally validated.” 57 Validation requires a physician, who alone can “diagnose or categorize the cause of an impairment” and also “measure and document its functional impact.”58” (Prof. Kat MacFarlane, Disability Without Documentation, forthcoming article in volume 90 of the Fordham Law Review, at pages 7-8).
I could not have said what the medical motto is better myself.
- On page 42 of the Bundy article, which can be found here, this statement appears: “… cognitive impairment afflicts physicians across the career span, not just older physicians. If the overarching goal is to prevent patient harm through early detection of cognitive impairment in physicians, older physicians may, in fact, be too narrow a target.” 107 Journal of Medical Regulation 42. The problem with this statement is that it is not in accordance with the ADA and §504 of the Rehabilitation Act because preventing harm through early detection is not what the ADA or the Rehabilitation Act are all about. Rather, the question is in the case of employment is whether the person is a qualified individual with a disability. That is, do they meet the requisite requirement for the job by way of training, education, skills, etc. and whether they can do the job’s essential functions with or without reasonable accommodations without constituting a direct threat to self or others. Similarly, when it comes to medical licensing boards the only question is whether the licensee is a qualified individual with a disability per the ADA. Under title II, the question becomes Selectman raise whether they meet the essential eligibility requirements of the program and whether they can do that program with or without reasonable modifications and without constituting a direct threat to others. So, the premise of the paragraph is to weed out people with disabilities or show an early need to fix or cure a person with a disability. That is just not the way the ADA and the Rehabilitation Act roll. Also, keep in mind that the ADA per 42 U.S.C. §12102, protects all of the following categories: 1) a person with an actual disability; 2) a person with a record of a disability; and 3) a person who is regarded as having a disability. So, the emphasis in the ADA and in the Rehabilitation Act is not on whether the disability can be fixed or cured, which is in essence a personal choice, but rather whether the person is qualified per the ADA for the job or the program and does not constitute a direct threat. Finally, direct threat is a much higher standard, as we have discussed numerous times such as here, than the amorphous, “patient harm.”
- On page 43 of the article, the authors say, “age-based cognitive screening of physicians has received considerable pushback from the medical community and raises ethical and legal issues regarding age discrimination.” 107 Journal of Medical Regulation 43. This is absolutely true. The EEOC has currently sued Yale University hospitals for such a program. That case is ongoing. The EEOC also is in the process of settling with Yale University hospitals a lawsuit involving how they implement their wellness programs. What is missing from this paragraph is any recognition that such cognitive screening creates serious issues of noncompliance with the ADA and §504 of the Rehabilitation Act.
- On page 44 of the article, the authors say, “if our overarching goal is to prevent patient harm through early detection of cognitive impairment in physicians, older physicians may be too narrow a target.” 107 Journal of Medical Regulation 44. Patient harm is not the standard under the ADA. As mentioned above, the question is whether the individual is a direct threat to self or others if the individual’s employer is doing the evaluation, or whether the individual is a direct threat to others if it is the medical licensing board or the professional recovery program doing the evaluation. Such an overarching goal creates problems with respect to giving people a record of a disability, which they may or may not actually have, and certainly creates problems by regarding people as having a disability.
- Also on page 44, the authors say, “…merely focusing on concerns related to aging may be a convenient and more comfortable proxy for the larger problem of proactive identification of potentially impairing health conditions at any age.” Id. (Emphasis mine). “Potentially impairing health conditions,” is a term you see all over the Federation of State Medical Boards Policy on Physician Impairment. With respect to ADA compliance, using such a term as your touchstone, will keep ADA defense lawyers very busy and allow plaintiffs lawyers to gravitate to such cases. The term “potentially impairing health conditions,” is simply not consistent with the ADA or the Rehabilitation Act. The question is under the ADA/Rehabilitation Act whether you have an actual disability, a record of a disability, or are regarded as having a disability. Using “potentially impairing,” means that you are automatically regarding that individual as having a disability and allowing him or her to be protected by the ADA. Remember, for a person to be protected under the ADA all they have to show is one of the three definitions of disability.
- Again on page 44, the authors state, “we suggest that the value of the physician as healthiest self be woven into the physician identity beginning in medical school and reinforced throughout the career span.” Id. No one can argue with the idea that everybody should be as healthy as they possibly can. However, the language clearly suggests that people with disabilities are simply not healthy. Whether you are healthy or have a disability are two completely different concepts.
- On page 45, the authors state, “other safety sensitive professions-such as airline pilot, air traffic controllers, police officers, and firefighters-recognize the link between health and performance and undergoing routine compulsory health screening. The absence of such screening for physicians is a conspicuous gap in the professional self-regulation of physicians. If we are truly committed to protecting our workforce and promoting patient safety, then we should mind this gap and consider the merits of mandatory routine health screening for all physicians. This is particularly important, and physicians may have difficulty acknowledging that they are unwell and tend to underutilize health services.” 107 Journal of Medical Regulation 45. The problem with this particular statement with respect to ADA/Rehabilitation Act compliance are numerous. First, under title I of the ADA medical examinations and disability related inquiries of current employees can only be done when there is reason to believe that such a medical exam/inquiry is necessary because it is job-related and consistent with business necessity. We have discussed job-related and business necessity many times before in the blog, such as here and here. Second, the ADA in both title I and title II prohibits policies and procedures that screen out people with disabilities. Clearly, compulsory health screening is such a policy. Finally, if my experience in my practice is any indication, such compulsory screening would not take into account whether the person is qualified per the ADA or whether the person constitutes a direct threat to self or others or to just others, depending upon what title of the ADA is at issue.
- Also, on page 45 of the article, this appears, “we recognize that the prospect of mandatory health screening over the career span is likely to be met with resistance. However, we have argued that health conditions that could negatively (emphasis mine), impact physician performance and patient safety are not limited to older physician; thus, the rationale for screening is valid for all physicians. We have also suggested that age is but one factor, probably less important than health, in the complex interplay between cognition and practice performance.” Id. This paragraph also has several problems with respect to ADA/Rehabilitation Act compliance. First, “that could negatively,” is really the same term as, “potentially impairing.” Those terms are not consistent with the ADA/Rehabilitation Act. Second, patient safety is not the issue either under the ADA or the Rehabilitation Act. The question is direct threat. Further, direct threat is a high standard as we have discussed here. Finally, the prospect of mandatory health screening over the career span should be met with resistance because it is not in accordance with the ADA or the Rehabilitation Act.
- On page 46 of the article, the authors say this, “physicians who have positive screen that result in the need for further health evaluation could be directed to their State Physician Health Program. State Physician Health Programs (PHP’s) have a highly effective model to address and rehabilitate impairing health conditions in physicians and other health professionals.” 107 Journal of Medical Regulation 46. While one may or may not quibble with the substance of the statement, the statement by itself is neutral enough on its face. However, title I of the ADA final implementing regulations and the technical assistance memorandums for title II and title III of the ADA make clear that any such evaluations need to be narrowly focused, which, if my experience in my practice is any indication, does not happen with regularity.
- Also, on page 46 of the article, the authors say, “should health screening and follow-up reveal an impairment, substantial risk of impairment, or risk of dyscompetence/incompetence, the PHP and physician would work together along the traditional PHP pathway with the goal of rehabilitating the physician’s safe continuation of, or return to, practice.” Id. There are numerous problems here with respect to ADA/Rehabilitation Act compliance. First, absolutely nothing wrong with having an impairment. All kinds of people have impairment. The question is under title I and II of the ADA is whether they are a qualified person per the ADA with a disability. Second, as mentioned previously, the potential for impairment plays no role in ADA analysis. The question is whether the individual is a direct threat to self or others should an employer be doing the evaluation or whether the individual is a direct threat to others should the medical licensing board or the PHP be doing the evaluation. Finally, the language makes it very very clear that what is going on here is the medical model of disability which the ADA as amended largely, but certainly not entirely, does away with.
- As I have mentioned, public safety is not the standard rather direct threat is. However, public safety may come into play with respect to the burden of proof for establishing direct threat, as we discussed here. That said, direct threat and who has the burden of proof for establishing direct threat are not at all the same thing.
- The term qualified does not appear in title III of the ADA at all, but the paradigm of the ADA is such that the term must be implied. Otherwise, how can a title III entity convincingly show that a reasonable modification is a fundamental alteration to how their business operates.
- The medical model described in this article also has serious implications for the healthcare sector because many ADA qualified healthcare providers will be and are being pulled from the profession so that their disability can be fixed or cured even though they are perfectly capable of performing the essential functions of their job with or without reasonable accommodations and do not constitute a direct threat to others. They also meet all the essential eligibility requirements for their profession as well.
- Fortunately, my understanding is that the legal profession has not yet gone the route of the medical profession with respect to the “potentially impaired,” attorney. For the reasons laid out in this article, I sincerely hope that the legal profession does not go down this path. Since lawyers worry about complying with the law, I would hope that we would know better. Finally, I would also refer readers to the blog entry I previously wrote on the issues contained in this blog entry as well.
Go Braves and go White Sox. Good luck to all of your teams in the baseball playoffs.