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The Truth About Physician Health Programs

Part I: Introduction
Louise B. Andrew MD JD and Ronald Chapman JD
Physician Health Programs (PHPs,) are organized and
characterized as private non-profit 501c3 educational public
charity organizations. PHPs grew out state medical society
impaired physician committees staffed by colleagues,
themselves in recovery, to assist other physicians recovering
from alcoholism and addictions while retaining their own ability to
practice medicine. Such organizations, from which chapters of the
American Society of Addiction Medicine (ASAM) and subsequently
state PHPs arose1, were designed to assist and advocate for
physicians having significant and potentially impairing substance
abuse problems. Even today, most PHPs are led by physicians
who were drawn to the enterprise by their own experiences in
recovery.
Over the past two decades, PHPs have extended their mission to
include initial assessment, treatment referral and long-term
monitoring of many other conditions, including mental illness and
behavioral problems (e.g. disruptive behavior, boundary
violations etc.). In many states they lack leadership or staff with
training or ABMS certification in applicable specialties such as
psychiatry. This expansion in scope has been accomplished with
the full support of the Federation of State Medical Boards (FSMB),
individual state MLBs, state medical societies, and the Federation
of State Physician Health Programs (FSPHP), the organizing trade
association of PHPs.
There are 482 State PHPs, operating in close collaboration with
corresponding MLBs. A PHPs functional role may be specified in
the states statutes, regulations and/or in policy, typically tightly
interwoven with state Medical Practice Acts (MPAs), statutes
governing both the MLB and the practice of medicine for each
state.
1Parker, J, Abuse and Neglect in U.S.A. Residential Treatment Centers
at 60, accessed 3/4/106 at http://www.heal-online.org/unjp2011.pdf
2 Including DC, list accessed 2/28/16 at http://www.fsphp.org/stateprograms

PHPs were designed to perform a protective function for


physicians, as independent, private resource agencies working
with and creating a confidential and long arm buffer for
physicians who previously would have been disciplined directly by
the MLB for alleged behavior or illness resulting in medical
impairment3 (defined as inability of a provider to practice safely
due to a physical or mental condition). In recent years however,
this traditional long-arm relationship between the respective
agencies has noticeably shortened.
In 2014, the North Carolina OSA published the results of a yearlong Performance Audit of the North Carolina PHP. The State
Auditor found that NCPHPs internal program controls did not
provide reasonable assurance that abuse of authority by NCPHP
would be either prevented or timely detected, for several
reasons:
(1)The PHP lacked objective and impartial due process
procedures,
required by NC law, for physicians who
disputed its evaluations and directives.
(2)

The NCPHP CEO/Medical Director and the Clinical Director


retained excessive influence over the process for reviewing
physician complaints about the process by actively
participating in deciding the merits of such complaints,
while physician complainants were not allowed either to
represent themselves or to have legal representation when
disputing evaluations. Furthermore, members of the NC
Medical Board (NCMB) directly participated in the
Compliance Committee (grievance process), thereby
destroying any anonymity that physician clients might
reasonably have expected if their cases subsequently came
before the Medical Board.

3 Miles, SH A Piece of My Mind JAMA, September 9, 1998Vol 280, No.


10 and Do State Licensing Procedures Discriminate against Physicians
Using Mental Health Services? MN Med 1997 80: 42, collected and
accessed 3/1/2016 at http://tinyurl.com/PHPs-and-MLBs

(3)

Despite NC law requiring them to do so, the NCMB did not


periodically evaluate the PHP, and the NC Medical Society
did not provide adequate oversight

(4)

The PHP created the appearance of conflict of interest by


allowing treatment centers receiving PHP referrals to fund
its retreats and by paying scholarships to the treatment
centers (thus creating a prohibited business relationship),
and by allowing the same centers to provide both patient
evaluations (the results of which would dictate treatment
recommendations) and treatments to some patients.

(5)

PHP procedures did not ensure that physicians received


quality evaluations and treatment because the PHP did not
use any documented criteria for selecting the preferred
treatment centers, there were no periodic evaluations of
such centers as required by NC administrative code, and
there was no monitoring of the costs of treatment.

(6)

And lastly, undue burden was placed on physicians by the


predominant use of out-of-state treatment centers.

Significantly, NCPHPs policies did not even allow physicians to


have access to their own evaluations and case records
maintained by the NCPHP under the pretext that they constituted
peer review, and moreover, there were no policies regarding
any required communication between the PHP and the
physicians.
Records of NCPHP evaluations ultimately obtained by several
physicians during litigation show that diagnoses by NCPHP
evaluators and/or treatment centers (informed by the NCPHP
assessments) were unsupportable using accepted medical and
psychiatric criteria, and often antithetical to diagnoses arrived at
through concurrent independent licensed professional evaluations
that had been obtained by affected physicians. Background
reports material to the purported diagnosis (for example,
anonymous and unsubstantiated reports of alcohol on breath)
were accepted uncritically by the PHP evaluators. Some such
reports noticeably influenced a diagnosis, despite the fact that
they appeared, upon further investigation by a disinterested third
party, to have been incorrect, distorted, and/or without any

substantial basis in fact.4


Verification and accuracy in evaluations and resultant reports that
are forensic in nature are the very essence of a fair, impartial and
transparent disciplinary system as a result of which physicians
liberties, finances, and livelihood, as well as the safe continuing
care of their ongoing patients may be threatened.
Based on such internal evaluations, a typical PHP makes its
recommendations, which are delivered simultaneously to the
licensee and to the Medical Board, and thus carry the weight of
MLB orders. Such recommendations often include a referral for a
multi-day assessment5 at a pre-selected, usually out-of-state,
preferred evaluation program for a fee in the neighborhood of
$5,000,6 and/or to a preferred treatment program almost
invariably for a three month stay (despite that there is no
scientific data showing that 90 day hospitalizations are more
effective than 28 day stays, partial hospitalization, or intensive
outpatient treatment).7 Typical costs for inpatient programs at
preferred programs for physicians average $1,500 per day.
Physicians report that, once admitted to such a program, they
were strongly advised to agree with the assigned diagnosis
even if it was patently false. Some were coached to accept the
diagnosis or exaggerate their reported consumption of alcohol in
the hopes that insurance might cover some of the substantial
costs entailed (which can top $150,000 for a 90 day stay); or in
states where the only available monitoring by the PHP is for
Substance Use Disorder, acquiesce to a nonexistent SUD

4 personal communication 2/26/16, Jesse O Cavenar Jr. MD, who has


power of attorney for one, and who has reviewed PHP medical records
obtained in the course of litigation from several physician patients in
NC who have been, or refused to become, participants in the NC PHP
5 The nature of and rationale for which are seldom disclosed.
6 NC State Audit,
http://www.ncauditor.net/EPSWeb/Reports/performance/per-20138141.pdf
7 Miller, W, Inpatient alcoholism treatment. Who benefits? American
Psychologist 1986 Jul;41(7):794-805

diagnosis, even when the presenting problem was not substance


related.
Some PHPs refuse to provide records of internal evaluations to
physician clients, including even such basic information as the
nature of the concern justifying referral, the internal PHP
evaluation findings, or their rationale for making specific
recommendations for particular treatments. This was proven
customary operating procedure in the NCPHP Audit. Such
secrecy was justified on the pretext that such evaluations are in
the nature of peer review.
However, federal and state laws governing peer review are
uniform in their requirements for rigorous due process protections
of physicians being reviewed. The most fundamental tenet of due
process is the right to know the nature of and basis for any legal
proceedings that might result in deprivation of rights, and the
ability to respond. Although several authors of the emerging
paradigm of PHP treatment view due process as merely a legal
impediment to action and one by which PHPs are not
constrained8, if PHPs are indeed conducting legitimate peer
review, they most certainly are constrained by both state and
federal laws mandating that due process protections be provided
to physician participants.

8 Skipper, G and DuPont, R, The Physician Health Program, Chapter


15 in Kelly and White, Addiction Recovery Management, Springer
Verlag, 2011 at 283.