Rehabilitating impaired physicians in Pa.

By William H. Maruca, Esq.

Grammy-winning singer Amy Winehouse rose up the pop charts last year by singing “They tried to make me go to rehab, I said no, no, no,” then went to rehab anyway, leaving a trail of tabloid headlines in her wake. With a lot less fanfare, many physicians have been confronting and conquering their own drug and alcohol issues quietly through impaired physicians programs while keeping their licenses and preserving their careers.

The Associated Press reported in December 2007 that as many as 8,000 doctors may be in state-approved confidential drug and alcohol rehabilitation programs that let doctors continue practicing during their recovery, subject to oversight and monitoring. The Federation of State Physician Health Programs estimates the number at 9,000. These programs strive to promote early identification, treatment, documentation and monitoring of ongoing recovery of physicians before their illness impacts the care rendered to patients. While chemical dependency was historically the focus of these programs, they have expanded to include mental health and behavioral health problems, stress management, physical illnesses, cognitive deficits and “disruptive physician” conduct.

Impaired physician programs made news last year when California voted to abolish its program effective June 30, 2008 under pressure from the San Diego Center for Public Interest Law and other consumer watchdogs after the fifth in a series of audits reported significant deficiencies in monitoring and enforcement. California physicians are waiting to see if a new program will be adopted to replace it before it sunsets later this year.

Pennsylvania’s Physicians’ Health Programs (PHP) has been in operation since 1970, and its Professional Health Monitoring Programs (PHMP) since 1986. These programs are often confused with each other but are fundamentally distinct.

Physicians Health Programs

The PHP is operated by the Foundation of the Pa. Medical Society under a Memorandum of Understanding with the State Board of Medicine. The PHP monitors professionals with chemical dependency, mental health issues, behavioral health problems, physical illnesses, stress management, cognitive deficits and disruptive behavior. Its services are available to allopathic and osteopathic physicians, residents, medical students, physician assistants, dentists, dental hygienists and podiatrists.

Participants enter into a contract with the PHP which typically lasts five years for chemical dependency matters. Random urine drug screen is required with declining frequency beginning at 50-60 times per year in the first year, reduced to 10-20 times in the final year. Members are required to attend 12-step support (self help) group meetings (AA, NA, Caduceus) 3-4 times per week in the first three years, 2-3 times per week in the last two years. Group and/or individual therapy or treatment is required for a minimum of two years. Workplace/practice monitoring is required.

The PHP also offers mental health monitoring services, with three-year contracts and support (self help) group requirements as recommended by the treating professional, and individual or group therapy or treatment for the entire contract period as indicated. For physicians with cognitive deficits, PHP facilitates re-entry by following progress and monitoring work through clinical review by volunteer physicians. PHP also monitors physicians who have been identified as “disruptive,” typically requiring evaluation and treatment by qualified psychiatrists to address anger management and appropriate workplace conduct. In recent years many hospitals have adopted disruptive physician policies and will invoke them to require physicians to seek help when their verbally abusive or uncooperative behavior threatens to impair patient care. This approach is not without controversy – some physicians feel they have been wrongly labeled “disruptive” without justification or in retaliation for raising quality concerns or other valid issues.

The PHP’s program is confidential, but participation must be disclosed to the physician’s employer and the medical staff office of facilities where the physician practices. Generally the employer and hospital are sent a periodic letter confirming that the physician remains in compliance with the program’s requirements without further details.

Professional Health Monitoring Programs

The Professional Health Monitoring Programs (PHMP) of the state Bureau of Professional & Occupational Affairs (BPOA) is a state-run program, as contrasted with the PMS Foundation’s private program. The PHMP provides a method by which professionals suffering from a physical or mental impairment, such as chemical dependency, may be directed to appropriate treatment and receive monitoring to ensure that they can safely practice their licensed profession. The PHMP includes two separate programs, the Voluntary Recovery Program (VRP) and the Disciplinary Monitoring Unit (DMU).

The Voluntary Recovery Program offers confidential, voluntary treatment and monitoring of licensed professionals suffering from mental or physical impairments. The Disciplinary Monitoring Unit manages the cases of impaired licensed professionals under formal discipline by the various boards and commissions.

The PHMP requires participants to submit to random toxicology screenings, abstain from the use of prohibited substances, comply with the recommendations made by their PHMP-approved treatment provider(s), submit to monitoring of their practice by a workplace monitor, actively attend support group meetings as recommended by the PHMP-approved treatment provider and approved by the PHMP, and abide by all other terms and conditions of the program and the applicable licensing board’s consent agreement or board order.

The VRP requires a practitioner to enter into a consent agreement with their licensing board for a period of a minimum of three years. The consent agreement stipulates that disciplinary action, including suspension or revocation, will be deferred so long as the licensee adheres to the terms and conditions of the agreement and maintains satisfactory progress in the program. Upon successful completion of the VRP program, no disclosure, publication or public record is made of the participant’s involvement in the VRP or the events precipitating their enrollment.

Licensees wishing to participate in the Voluntary Recovery Program (VRP) must:

· Agree to be assessed by a VRP-approved assessor and adhere to the treatment plan recommended by the evaluator.

· Comply with all of the terms and conditions for VRP participation.

· Enter into an agreement with the licensing board stipulating that disciplinary action, including suspension or revocation, will be deferred so long as the licensee adheres to the agreement.

Currently ineligible for the VRP are:

· Licensees convicted of, or pleading guilty or no contest to, a felony or misdemeanor under the Controlled Substance, Drug, Device and Cosmetic Act (this can be a major barrier if the physician has been caught diverting prescription medications or has self-disclosed such activities to the authorities and agreed to a plea bargain).

· Licensees with a history of practice problems clearly involving significant patient harm.

· Licensees who have been involved in the diversion of controlled substances for the primary purpose of sale or distribution.

· Licensees who have committed sexual boundary violations.

· Licensees who have failed to successfully complete a similar program in another jurisdiction.

The VRP is currently available to Pennsylvania chiropractors, dentists, allopathic and osteopathic physicians, registered nurses, optometrists, pharmacists, physical therapists, podiatrists, licensed social workers, psychologists, marriage and family therapists and professional counselors, speech-language therapists and veterinarians.

ADA Issues

The Americans with Disabilities Act (ADA) may offer some protection to physicians in recovery. A person who is not currently dependent on alcohol or engaging in the illegal use of drugs but who has a history of past drug addiction or alcoholism can qualify as an individual with a disability under the ADA if the past addiction substantially limited a major life activity, or is regarded as substantially limiting. An employer may not discriminate against, and may need to accommodate, a qualified applicant or employee with a past chemical dependency who can competently perform the job and comply with uniformly-applied employer conduct rules.

Get Help Before You Get Help

Practitioners who are struggling to conquer substance abuse problems should consult with experienced counsel before contacting the PHP or the PHMP to be certain they know their rights under these programs and the advantages and disadvantages of each program. Careful planning of communicating these issues with employers and hospital administration will preserve those rights to the fullest extent and help return the impaired physician to health and active practice.

William H. Maruca, Esq., is a health care partner with the Pittsburgh office of the law firm of Fox Rothschild LLP, with over 400 attorneys in 14 offices.