Can Professionals Health Programs Make Unjustified Demands with Impunity?

Each year when I renew my medical license, I am asked if I want to make a voluntary donation to the state Professionals Health Program (PHP). Well, what is a PHP program? They go by different names in different states, but the concept is the same. 

In North Carolina, its mission is as below: 

Our experienced team assists health care providers with substance use disorders, mental health issues, burnout, communication problems and other issues that may affect their ability to deliver optimal care and services to their patients. Our expert evaluation, monitoring, and treatment referral programs also provide the basis upon which we advocate for participants to their employers, partners, hospitals, insurance panels, and licensing boards. 

So far, so good. It seems to be a diversionary pathway for healthcare professionals to seek help and ideally be able to continue their careers without shame. 

But many doctors have not experienced these programs as a gesture of good will. They have experienced it as onerous, burdensome, expensive, and seemingly unending.  

A December 17^th letter from the Department of Justice investigated the Tennessee Board of Law Examiners (TBLE) and the Tennessee Lawyers Assistance Program (TLAP) pursuant to Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 et seq.   

The Tennessee Lawyers Assistance Program (TLAP) is very similar to Professionals Health Programs.  

The Department of Justice concluded that the state licensing body for lawyers and the Tennessee Lawyers Assistance Program had overstepped. It had violated federal law.  

“As stated herein, our investigation regarding these two complaints has concluded that the TBLE and TLAP violated Title II of the ADA with respect to: (1) subjecting bar applicants to burdensome supplemental investigations triggered by their status or treatment for a substance use disorder; and (2) excluding them or implementing burdensome, intrusive, and unnecessary conditions on admission that are improperly based on individuals’ diagnosis of or treatment for a substance use or mental health disorder.” 

Some background. 

The Tennessee Board of Legal Examiners (TBLE) administers admission of attorneys to the Tennessee Bar. The TBLE was created by statute, and its members are appointed by the Tennessee Supreme Court. Once an applicant completes all requirements for licensing, the TBLE “shall certify to the Supreme Court that an applicant is eligible for admission and issue to the applicant a ‘Certificate of Eligibility for Admission.’” The criteria for issuance of the Certificate of Eligibility for Admission include that the applicant:  

has demonstrated the reputation, character, honesty, respect for the rights of others, due respect for the law, and the fitness to practice law, that in the opinion of the Board indicates no reasonable basis for substantial doubts that the applicant will adhere to the standards of conduct required of attorneys in this State. 

The Supreme Court of Tennessee established the Tennessee Lawyers Assistance Program (TLAP) to provide help to lawyers, judges, bar applicants and law students “who suffer from physical or mental disabilities that result from disease, disorder, trauma or age and that impair their ability to practice or serve.” Pursuant to Supreme Court rules, TLAP may accept referrals of bar applicants from the TBLE, and it may conduct monitoring of such referred individuals. 

The Department of Justice investigated two cases. The first case was D.S. 

In the 1990s, he developed opioid use disorder (OUD), after becoming addicted to painkillers. He began receiving treatment for his OUD in 2012, and his treating physician prescribed him buprenorphine, one of three medications approved by the FDA as safe and effective for the treatment of OUD. This treatment has been highly effective for D.S., and he has engaged in this treatment continuously since 2012. D.S. enrolled in college and earned his undergraduate degree from Western Kentucky University in 2016, earned scholarships to attend law school and obtained his juris doctor degree from the University of Tennessee in 2019. After graduating, D.S. passed the Tennessee bar examination, and he was hired by a law firm in Clarksville, TN, where he successfully worked as a law clerk. 

When he applied for admission to the Tennessee bar, D.S. disclosed on his application various charges that were filed against him and ultimately dismissed, most of which occurred more than a decade before he graduated from law school during the time his addiction to painkillers was untreated. As part of the application process, D.S. was interviewed by the TBLE. The TBLE interviewer recommended D.S. for admission to the bar, with reservations, and recommended a TLAP evaluation or a practice monitor. 

Even though the Tennessee bar application did not seek information relating to D.S.’s medical history or medications, TLAP’s Clinical Director asked D.S., during his intake interview, whether he was taking any medications. When D.S. responded that he was taking buprenorphine for opioid use disorder, TLAP’s Clinical Director told him she was not sure how TLAP’s Director would want to deal with that. Following that conversation, TLAP’s Director told D.S. that because he was taking buprenorphine, he would have to be evaluated at his own expense at one of several TLAP-approved facilities. D.S. was provided a list of TLAP-approved facilities, all of which were located outside Tennessee. D.S. chose to be evaluated by Palmetto Addiction Recovery (“Palmetto”) in Rayville, Louisiana because it was the least expensive. Consequently, D.S. had to travel to Rayville, Louisiana, an almost 8-hour drive, for a multi-day assessment by a team of professionals. D.S. was evaluated by a psychiatrist, was administered a battery of psychological and cognitive tests by a psychologist and was tested for a variety of drugs. The psychological testing showed no signs of cognitive impairment, nor was any evidence of decreased concentration noted by the examining psychiatrist. The drug testing was negative for all drugs tested, including cannabinoids, except for buprenorphine, for which D.S. had a valid prescription. D.S. was required to pay $2,000 out of pocket for the evaluation by Palmetto. 

Even though D.S. tested negative for all tested drugs (other than the medication prescribed by his doctor), Palmetto recommended that D.S. sign a five-year monitoring contract with TLAP. In addition, Palmetto recommended that D.S. complete “a TLAP approved long term inpatient treatment program experienced in treating chemically dependent lawyers. This treatment should include complete detoxification off all controlled substances including Suboxone.” Palmetto subsequently informed D.S. that the “long term inpatient treatment program” would take six months to a year at Palmetto’s facility in Louisiana. Palmetto informed D.S. that the cost of this treatment program would be approximately $30,000. 

D.S.’s treating physician, who had been successfully treating D.S. for years with buprenorphine, “emphatically” disagreed that D.S. should be required to participate in a long-term inpatient treatment program to achieve “detoxification” from the medication that effectively treats his disability. D.S.’s doctor further relayed to the TLAP that D.S. had been compliant with his treatment program for several years, had never demonstrated any behavior that would indicate a functionally problematic psychiatric or personality disorder, and that D.S. was not physically or psychologically impaired by taking buprenorphine as part of his medication-assisted treatment for OUD. 

In November 2021, D.S.’s employment was terminated at the law firm at which he had been working because of his inability to obtain a law license. 

Following Palmetto’s recommendation, D.S. had a conversation with TLAP’s Director and TLAP’s Clinical Director in which they told him he would need to complete the inpatient treatment program recommended by Palmetto at his own expense to comply with TLAP’s requirements. D.S. expressed his concern to TLAP that he did not have the financial wherewithal to pay the cost of the inpatient treatment program and that he would lose his job if he had to travel to Louisiana for six months to a year to complete the treatment program. On December 8, 2021, TLAP’s Director informed D.S. that he “used some of TLAP’s goodwill to scholarship a significant portion of the cost of [his] treatment” and that they agreed to treat him for $15,000 and give him credit for the $2,000 he paid for the assessment. 

The TBLE informed D.S. that if he did not comply with TLAP’s recommendations and was dismissed from TLAP, the TBLE would deny his application for admission “on Character and Fitness grounds.” Thus, D.S. was left with the choice of continuing the treatment that is successful for him in treating his OUD or obtaining his license to practice law. 

In early July 2022, D.S. contacted Palmetto to see if it would revise its recommendations. The Palmetto Medical Director sent a letter in response to TLAP’s Director dated July 11, 2022, in which he stated that Palmetto stood by its original recommendations. In doing so, he stated Palmetto’s opposition to professionals taking Suboxone as treatment for opioid use disorder. He enclosed Policy Statements from Palmetto dated March 16, 2012 and November 8, 2019 that state: “Palmetto does not recommend use of controlled medications in a professional population. We believe that such medications create side effects and physiological dependence incompatible with the practice of a profession.” The Policy Statements further state: “We believe that a professional who wishes to take controlled medications should make a choice between the medications and the profession.” 

D.S. also discussed obtaining a second evaluation with TLAP’s Director. On July 8, 2022, TLAP’s Director sent D.S. a list of TLAP-approved facilities for a second evaluation, which included the out-of-state facilities that were originally listed as well as Vanderbilt University. D.S. chose to be evaluated at Vanderbilt rather than the out-of-state facilities previously listed by TLAP. TLAP’s Director informed Vanderbilt by email dated July 19, 2022 that D.S. had chosen Vanderbilt to “conduct a TLAP-approved multidisciplinary assessment so as to obtain a ‘second opinion.’” The email stated that D.S. had “previously completed a TLAP-approved multidisciplinary assessment at Palmetto Addiction Recovery Center in Rayville, Louisiana” and that D.S.” does not agree with Palmetto’s findings and recommendations.” The email contained no other information or specification of issues that should be addressed by an evaluation. 

D.S. was subsequently evaluated at Vanderbilt on August 29, 2022 and October 4, 2022. The evaluation included a full battery of psychological tests as well as an evaluation by a psychiatrist. The psychiatrist subsequently issued an evaluation report in which he concluded: 

“[D.S.] appears to have been successful on partial agonist therapy for over a decade without legal, educational, or occupational deficiencies of consequences. Indeed, academic collateral sources who worked closely with him over multiple school terms reported surprise at the initial revelation by [D.S.] that he was taking this medication, and there have been no employment-related concerns pertaining to his performance.”

Nonetheless, the medical report concluded that D.S. “is not fit for the practice of Law, which is a safety-sensitive position.” Similar to the report from Palmetto, the Vanderbilt report recommended treatment “that includes exploration of the possibility of abstinence-based recovery for opioid use disorder at a facility approved by TLAP” and a potential monitoring agreement with TLAP. 

D.S. received the Vanderbilt report just days before a hearing was scheduled on the TBLE’s order to show cause regarding D.S.’s application for admission to practice law in Tennessee. Based on advice of counsel, D.S. withdrew his application to practice law. A few months later, D.S. submitted a new application for admission to practice law to the TBLE. TLAP informed D.S. that he would need to get another evaluation by Vanderbilt and sign another monitoring agreement with TLAP in order to be compliant with TLAP. On August 1, 2023, Vanderbilt sent a letter declining to conduct a further evaluation upon D.S. On August 11, 2023, TLAP wrote D.S. informing him that TLAP would take no further action and would close his file. 

The TBLE set a Show Cause Hearing on December 6, 2023, which was after this Office notified the State on September 29, 2023 that it was investigating complaints that the TBLE and TLAP may have violated the ADA in connection with applicants who have been diagnosed with or treated for opioid use disorder or mental health conditions and made a request for information. At the hearing, the TBLE informed D.S. and his counsel that any issues concerning TLAP compliance would not be addressed at the hearing. At the conclusion of the hearing, the TBLE concluded that D.S. had the character and fitness necessary to practice law, and he was finally admitted to practice law in Tennessee soon thereafter without any conditions or monitoring required. 

Well, after all that, D.S. became a licensed lawyer in Tennessee. After the Department of Justice suggested the TBLE may have violated the Americans with Disabilities Act. 

It was more than a suggestion.  

We conclude that the TBLE and TLAP violated Title II of the ADA with respect to individuals with actual or perceived substance use disorders. Under Title II of the ADA, no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132; 28 C.F.R. § 35.130(a). Substance use disorders are disabilities under the ADA. 42 U.S.C. § 12102(1)(A); 28 C.F.R. § 35.108(b)(2) (listing “drug addiction” among other physical and mental impairments). The TBLE10 and TLAP11 are public entities as defined by the statute. 42 U.S.C. § 12131(1); 28 C.F.R. § 35.104. 

TBLE and TLAP discriminated against D.S. in Tennessee’s attorney licensing program on the basis of his disability when they subjected him to additional, burdensome examinations based on his use of lawfully prescribed medication for his OUD and forced him to choose between his law license or continued treatment as prescribed as necessary by his treating physician. These conditions were imposed on D.S., even though there was no evidence that his OUD or his use of buprenorphine to treat his OUD in any way impaired his ability to practice law. Indeed, D.S.’s treating physician relayed that he had been successfully treating D.S. for years with buprenorphine, that D.S. had been compliant with his treatment program, that D.S. had never demonstrated any behavior that would indicate a functionally problematic psychiatric or personality disorder, and that D.S. was not physically or psychologically impaired by taking buprenorphine as part of his medication-assisted treatment for OUD. TBLE and TLAP persisted in imposing these conditions even though the entities conducting the required evaluations concluded that D.S. was not using drugs other than his prescribed medication, that there were no signs of cognitive impairment or decreased concentration, and that he had been successful on his prescribed therapy with no legal, educational, or occupational deficiencies or consequences. Because the withholding of a law license was based on D.S.’s disability and his treatment for his disability, TBLE and TLAP discriminated against him in violation of the ADA. Ellen S. v. Florida Bd. of Bar Examiners, 859 F. Supp. 1489, 1494 (S.D. Fla. 1994) (a licensing entity discriminates against qualified disabled applicants by placing additional unnecessary burdens on them and this discrimination can occur even if these applicants are subsequently granted licenses). 

Importantly, the Department of Justice noted that while licensing entities can impose safety requirements, it must do so based on actual risks, not speculative risks. There must be data to support its conclusions. 

While a public entity “may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities … the public entity must ensure that its safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” 28 C.F.R. § 35.130(h). To the extent they are proffered as safety requirements, the restrictions and conditions that TBLE and TLAP imposed on D.S. and [the second case] were based on speculation about their disabilities that were contrary to demonstrated conduct, and as to D.S. in particular, they were based on stigma and stereotypes about his prescribed treatment…. 

With respect to D.S., TBLE and TLAP held his law license in abeyance and imposed burdensome requirements on him based upon their and their approved providers’ stereotypes about the medication D.S. takes to treat his OUD. Even though these providers noted that the treatment D.S. uses has been effective for him and has not resulted in any negative symptoms that affect his ability to practice law or in any deficiencies in legal or employment performance, they nonetheless disapproved of his use of buprenorphine based on their own, unfounded stereotypes about the medication. They disregarded the findings of D.S.’s own treating physician who had been treating D.S. for years and emphatically disagreed that D.S. should be forced to “detox” from his prescribed medicine. Thus, TBLE and TLAP’s restrictions on D.S.’s bar license were based on stereotypes, rather than actual risk. 

Similarly, under Title II, a public entity is not required “to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.” 28 C.F.R. § 35.139(a). However,  

“(b) In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.”

28 C.F.R. § 35.139(b). As explained above, TBLE and TLAP based their restrictions on speculation and stigma, rather than individualized assessment or current evidence… And with respect to D.S., their restrictions were contrary to the individualized assessment of D.S.’s own treating physician and their own providers’ conclusions that D.S.’s treatment had been successful and caused no deficiencies relevant to the practice of law. Thus, TBLE and TLAP’s actions cannot be justified under the direct threat or legitimate safety requirements exceptions. 

TLAP and TBLE’s discriminatory actions caused D.S. and [and the second case] significant economic harm. For D.S., the law firm that had offered him an attorney position terminated his employment as a result of his inability to obtain a law license due to the restrictions imposed by TBLE and TLAP. Additionally, he incurred several thousand dollars in fees and travel expenses to be evaluated by the two treatment facilities in Louisiana and Tennessee… 

The Department of Justice made a number of recommendations: 

To remedy these violations and to protect the civil rights of individuals with actual or perceived substance use or mental health disorders who seek to practice law in the State of Tennessee, the TBLE and TLAP should promptly implement corrective measures, including the following:  

1. Refrain from prohibiting, limiting, or restricting applicants or attorneys from taking medications for treatment of substance use disorder, including buprenorphine or methadone, when such medications are legally prescribed for a legitimate medical purpose by a medical professional acting in the usual course of his or her professional practice;  
2. Refrain from inquiring into an applicant’s diagnosis of or treatment or medication for a substance use disorder or mental health disorder unless the applicant voluntarily discloses this information to explain conduct or behavior that may otherwise warrant denial of admission. Any such inquiry shall be narrowly, reasonably, and individually tailored to determine whether the applicant’s condition currently impairs his or her ability to practice law in a competent, ethical, and professional manner.  
3. Not recommend or impose conditional admission, or conditions or restrictions on admission, solely on the basis of a diagnosis of or treatment for a substance use disorder or mental health disorder, including an applicant’s use of lawfully prescribed medication for substance use disorder;  
4. Ensure that any conditions of admission imposed on an applicant who reveals a substance use disorder or mental health disorder, including the duration of conditional admission, are individually tailored to address the conduct that justified the recommendation; and  
5. Provide training for all relevant TBLE and TLAP personnel regarding their obligations under the ADA and ensure that such personnel are aware of these remedial measures.  

We hope to work cooperatively with you to resolve the Department’s findings in this matter. If the TBLE or TLAP declines to enter into voluntary compliance negotiations or if our negotiations are unsuccessful, the United States may take appropriate action, as described at 28 C.F.R. §§ 35.173 and 35.174. 

What are the take home points? 

I quote my good friend and colleague, Louise Andrew, MD, JD: 

What’s important here is that the TN “Lawyer Assistance Program” is finally being held accountable for its actions, being specifically recognized in its own right as a “Public Entity”; and can no longer deflect responsibility onto the Bar for promulgating its own impermissible discrimination based on myths, stereotypes, and speculation regarding the possible future impact on law practice by individuals who receive standard of care treatment for OUD or other mental health issues. 

PHPs apparently STILL do not realize that they, as agents of Medical Boards, are in fact subject to Title II of the ADA; and that under that law, physicians who are labeled as being “potentially impaired” ARE in fact legally disabled, and entitled to protection from discrimination under the ADA. These inconvenient truths are routinely completely ignored in FSPHP and PHP policies. PHPs clearly believe they are immunized from liability by their purported long arm relationship with their respective licensure boards, who enforce their actions, and they and their leaders meretriciously proclaim that physicians (and lawyers) are “safety sensitive” workers, which they apparently believe justifies their disparate treatment. 

Any physician who is currently being forced into abstinence-based treatment or denied [Medications for Opioid Use Disorders] should take this cue and bring a similar complaint against any public entity that is discriminating in this manner. DOJ is clearly primed. 

If the Tennessee Board of Law Examiners and the Tennessee Lawyers Assistance Program disagree with the proposed remedy, this will likely head to federal court. 

Restrictions and forced treatments against licensed professionals with a recognized disability must be based on evidence and facts, and not speculation, guess-work, or stigma. 

What do you think?