ORIGINAL RESEARCH
Physician Health Programs The Maryland Experience Stanley Platman, MD, Thomas E. Allen, MD, Susan Bailey, MD, Chae Kwak, LCSW-C, and Stephen Johnson, JD
Background: This article briefly summarizes not only the history of physician health programs, including their singular success, but also their struggle to maintain the ethical integrity of the programs, their appropriate autonomy, and the privacy of physicians enrolled in them. Method: We review the history of the Maryland Physicians Health Program, how it initially developed and was funded, how the program became funded by the state, how this ultimately caused serious problems, and how these were eventually resolved. Results: Maryland was able to achieve a 2-program solution that protected both the voluntary participants while meeting the needs of the state licensing board for participants mandated by the state licensing board. This result has been well received by both the physician community and the state licensing board. Conclusions: How the problems were solved and the ultimate agreement provide a model for others to use. Key Words: autonomy and physician impairment programs, ethical issues in physician health programs, medical licensing board, oversight of physician health programs, physician health program, physician impairment, physician rehabilitation programs (J Addict Med 2013;7: 435–438)
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he American Medical Association Council on Mental Health (1973) first focused national attention on “The Sick Physician” in 1972, publishing its report on the subject the following year. The report acknowledged substance abuse as a frequent problem. It recognized the denial common in affected physicians and “an entrenched ‘conspiracy of silence’” within the profession itself. The report recommended persuading the impaired physician to get help, but if that strategy failed, referring the physician to the state licensing board. The report
From the Physicians Health Program (SP), Center for a Healthy Maryland Board Oversight Committee for the Impaired Physician Programs (TEA), Physicians Rehabilitation Program (SB), Impaired Physician Programs (CK), Center for a Healthy Maryland (SJ), Baltimore, MD. Received for publication March 30, 2013; accepted August 29, 2013. The authors report no conflicts of interest. Send correspondence and reprint requests to Stanley Platman, MD, Maryland Physician Health Program, Center for a Healthy Maryland, 1202 Maryland Ave, Baltimore, MD 21201. E-mail: [email protected]. C 2013 American Society of Addiction Medicine Copyright ISSN: 1932-0620/13/0706-0435 DOI: 10.1097/01.ADM.0000434988.43332.dc
noted that of 54 medical societies canvassed, 37 responded and only 7 indicated a medical society component addressing the “sick” physician problem. The report sparked interest in creating physician health programs (PHPs). Within 10 years of the American Medical Association report on “The Sick Physician”, only 3 of 54 medical associations in the United States had not taken action (American Medical Association Department of State Legislation, 1985). Most PHPs started out as committees overseeing programs sponsored and funded primarily by the state medical society. However, over time, other funding sources evolved, including health departments, malpractice insurers, hospitals, university training programs, charitable grants, and licensing boards. The success of these programs in treating physicians with substance use disorders has been extraordinary and has been noted in many publications (Alpern et al., 1992; McLellan et al., 2008; Dupont et al., 2009a, b). Of late, however, there has been an increasing trend for state licensing boards—or for contracted corporate programs, both for-profit and not-for-profit in nature—to operate PHPs. A recent commentary in the Journal of Addiction Medicine focused on the ethics of PHPs, many of which “receive a substantial portion of their funding from their state licensing Board” (Boyd and Knight, 2012). Besides detailing potential conflicts of interest, the commentary noted a coerciveness inherent in PHP operations—if a physician agrees to cooperate with a PHP, he can sometimes avoid disciplinary action by the state licensing board (hereafter referred to as Board). Yet he sacrifices his confidentiality, as details of his treatment and his compliance with monitoring are released to the Board. As the authors note, “ . . . once a PHP recommends monitoring, physicians have little choice but to cooperate with any and all recommendations if they wish to continue practicing medicine.” The issues of coercion and confidentiality are real and serious concerns regarding Board-mandated PHPs. One possible way of minimizing these concerns is separating a PHP as much as possible from Board funding and oversight. Programs without linkage to the Board can reach out to physicians who may seek to enter treatment voluntarily. As with most medical disorders, substance abuse problems that are recognized early on have the most favorable prognosis. Although licensing Boards have the ultimate authority for ensuring that the public is protected against incompetent physicians, it is the individual
J Addict Med r Volume 7, Number 6, November/December 2013
Copyright © 2013 American Society of Addiction Medicine. Unauthorized reproduction of this article is prohibited.
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physician who must weigh the incentives and disincentives of engaging in treatment sooner rather than later. If PHPs could be structured to protect the confidentiality of physicians who voluntarily seek treatment and support, would more physicians seek treatment sooner? And would fewer physicians find themselves facing disciplinary action before the Board later? The Medical Society of Maryland (Med Chi), which has had to restructure its PHP and redefine its relationship with the Maryland Board of Medicine on several occasions, has had a unique opportunity to attempt to examine those questions.
THE MARYLAND EXPERIENCE 1978–2003 (PLATMAN, 2004) Med Chi initially established a Physician Rehabilitation Program (PRP) in 1978. Maryland was one of the first states in the nation to offer such a service to its physicians. The Maryland Medical Journal in 1992 described the program and the results of a survey of physicians who had completed the program. The rate of recovery was 86% for those with alcoholism, 90% for those with drug addiction, and 75% overall when other physical and mental illnesses were included. From 1978 to 1989, the Maryland program was funded by the medical society, although nonmembers were also served. In 1989, the state passed legislation that allowed a $50 assessment on medical licenses to be paid to Med Chi to operate the PRP. Although the state collected the fees and the licensing Board endorsed the collection, the money was not part of the state or Board budget. It passed directly to the PRP, which initially served only physicians and then physician assistants as well.
THE MARYLAND EXPERIENCE, 2003 to 2010 In 2003, in response to a sunset review of the Maryland medical licensing Board, the Maryland legislature removed statutory authority from Med Chi to operate the PRP. Authority to operate the program was instead given to the Board, despite a finding by the sunset review that the program was performing well and despite a recommendation that its funding be increased. The Board, under its new authority, issued a Request for Proposals (RFP) in an effort to bid out the PRP. Because of numerous concerns around confidentiality, staff autonomy, and potential conflicts of interest, Med Chi did not submit a bid. Neither did anyone else. A new 6-month emergency contract was enacted for Med Chi to continue managing the Maryland PRP. The Board then issued another RFP. It required all participants in the program, not just those under Board order, to sign a consent form for the PRP to release all information to the Board if so requested. Again there were no responders. Med Chi once more voiced privacy and confidentiality concerns regarding the Board’s RFP, citing a need to bring physicians into recovery programs voluntarily before they harm or endanger a patient, emphasizing that physicians who seek help early can avoid being reported to their licensing Board or to the National Practitioner Data Bank—reports that can harm a physician’s reputation and limit his or her ability to practice (hospital privileges, insurance panels, etc). Med Chi obtained an independent review of the Board’s RFP provision by an outside legal firm. The firm’s opinion was
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that the reporting provisions required by the Board would violate Health Insurance Portability and Accountability Act and federal confidentiality laws such as 42 Code of Federal Regulations part II, which was specifically enacted to encourage substance-using patients not already known to law enforcement or disciplinary agencies to enter treatment. The statute prohibits disclosure or use of protected information in “any civil, criminal, administrative, or legislative proceedings conducted by any Federal, State, or local authority.” Furthermore, punishments for violations of the law were serious and severe.
TWO PROGRAMS The Board disagreed with this opinion. Med Chi then offered a compromise: It would provide service to Boardreferred cases and release information to the Board if patients consented, but the Board must agree to exempt voluntary, non– Board-referred cases from having to disclose to the Board their participation. The Board-referred cases would be funded by the Board, and the voluntary participants would be funded through other sources. The Board refused this compromise and amended their RFP specifically to prohibit it. The resulting RFP was untenable for Med Chi to bid on, and no other bidders submitted proposals. The Board, in response, created its own PRP. Med Chi, in turn, created a new PHP into which impaired physicians could enter voluntarily. This PHP was structured in a fashion very similar to the original PRP. None of its funding, however, came from the Board. The program’s services included intervention, assessment, monitoring, and support. Since the program’s inception, roughly half of all physicians referred to it have chosen to enroll, approximately 80 physicians annually. The Med Chi PHP is now located in the Med Chi nonprofit subsidiary, the Center for a Healthy Maryland (CFHM). The program is supported by the medical society, hospital fees, physicians’ charitable contributions, and fees charged to users of the program.
A NEW RFP AND AN AGREEMENT Meanwhile, the Board discovered that the costs for its PRP were higher than expected. It also found that physicians did not choose to self-refer, and that federal and state regulations restricted the disclosures that could be made, thus preventing the direct access into participant files that the Board had deemed desirable. The Board then reentered into discussion with Med Chi. Med Chi and the Board agreed to support a statutory change, removing the Board’s responsibility to operate a program for self-referred practitioners. They further agreed on the following principles of operation for both the voluntary and mandated programs: 1. The Maryland Physician Health Program (MPHP) is separate and independent from the Maryland Professional Rehabilitation Program (MPRP). The MPHP is a voluntary program, and the Maryland Board of Physicians has no influence, authority, or access to information about participants in the MPHP. 2. Participants cannot be enrolled in both the MPHP and the MPRP at the same time. Participants in the MPHP who fall under Board Order or Disposition Agreement with the Board will be transferred to and only receive services C
2013 American Society of Addiction Medicine
Copyright © 2013 American Society of Addiction Medicine. Unauthorized reproduction of this article is prohibited.
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from the MPRP. There will be no exchange of information between the 2 programs without explicit written consent. The CFHM operates the MPRP under a contract with the Board to provide rehabilitation services to eligible practitioners. Practitioners eligible for the MPRP are physicians and allied health care professionals who have been formally determined by the Board to be in need of rehabilitation services and have either signed a Board Order or a Disposition Agreement to receive such services. The MPRP provides assistance to physicians and other allied health care professionals licensed by the Board with problems such as alcohol abuse, chemical dependency, or other physical, emotional, or mental health conditions that may affect their ability to practice medicine safely. The MPRP monitors the participant’s adherence to the rehabilitation requirements set forth in their Board Order or Disposition Agreement. The MPRP does not conduct assessments or evaluations of fitness for duty and/or impairment, or gather additional information for the purpose of adjudication by the Board. The Board makes the final determinations regarding the status of a case under its jurisdiction. The MPRP does not make declarations regarding a participant’s “compliance” or “noncompliance.” Participants in the MPRP will be informed of the terms, conditions, and events defined by the Board as “noncompliance,” and these will be designated “reportable events” by the MPRP. The Board will be the sole arbiter of “noncompliance.” The MPRP will provide information regarding “reportable events” to the Board, and the Board shall, at its own discretion, declare a participant “noncompliant.” The MPRP provides the following services: • Assessment and referral for clinically appropriate independent evaluation; • Development of an individualized rehabilitation plan; • Referral for treatment of any diagnosed problem to a clinically appropriate provider; and • Monitoring of adherence to the rehabilitation agreement and plan, including chemical screening of urine, breath, blood, hair, and, if needed, attendance at scheduled medical/therapy appointments, vocational monitoring reports, or other reports. Federal and state laws ensure the confidentiality of practitioners referred to the MPRP. Therefore, any release of information to external parties, including the board of physicians, requires explicit consents. Participation in the MPRP is voluntary. Eligible practitioners who refuse to sign the consent for services or consent for release of information to the Board will be referred back to the Board for other action.
THE OUTCOME The final agreement clearly established the limits of the authority of the Board and the MPRP and the responsibilities of each. It emphasized the program’s role in helping physicians enter into and maintain recovery, while insisting that the program not be drawn into fact finding of a prosecutorial nature during the Board’s investigation and adjudication of a C
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case. It further stipulated that a physician could choose not to participate with the program. If the physician did choose to participate, he or she was told before joining what the expectations of the program were and what were the reporting requirements to the Board. The results of this agreement seem at this point to be satisfactory to all parties. The Board is satisfied with the way that the CFHM is operating the PRP program and so are the participants. The voluntary PHP program continues to receive many referrals and has been very aggressive in reaching out to hospitals and the physician community, which have responded. The privacy of patients in the PHP program has been preserved, and the Board feels that it is getting the information in the PRP it needs to determine compliance with its orders. The Board contract funds the PRP, whereas the PHP is funded through hospital access fees, participants’ fees, and charitable contributions.
ORGANIZATIONAL STRUCTURE The MPHP and the MPRP are clinical programs that operate under the policy and financial oversight of the CFHM, a charitable affiliate of the Med Chi. The Center has fiduciary responsibility for the 2 programs and reviews and approves program budgets and policies. A subcommittee of the CFHM board, the Oversight Committee, meets on a monthly basis to review current caseloads, new referrals and admissions, outreach by staff to the hospital and physician community, income and expenses, and any special problems. It is not a clinical committee and does not review individual cases, but deals with administrative, ethical, and legal issues that arise and issues related to the budgeting for the programs. It reports on a quarterly basis to the CFHM board, making recommendations on policy and financial matters that the CFHM board, may or may not approve. The Oversight Committee is currently composed of 4 members of the CFHM board: 2 psychiatrists, 1 anesthesiologist, and 1 primary care physician. Staff to the Oversight Committee includes the medical directors of the programs, the clinical administrator of the programs, and the attorney for Med Chi and the Center. The Oversight Committee also meets on a quarterly basis with representatives of the Licensing Board, which recently has been less often because the Board has been undergoing changes. Participants in the PHP are not reported to the Board and the Board does not investigate participants in the PHP solely because they are in the PHP. The length of monitoring is at the PRP’s discretion, and any previous monitoring by the PHP is counted toward the overall length of the PRP’s monitoring. As noted earlier, the funding streams for the 2 programs are quite separate. The Maryland Board of Physicians entirely funds the PRP program, with money from a portion of the licensing fees that physicians pay in Maryland. The PRP is completely dependent on Board financing, whereas the PHP is completely independent of Board financing. The PHP continues to be funded through fees hospitals pay to the program to provide services to their medical staffs, fees charged to users of the program, charitable contributions, and support from the medical society. Board-referred physicians cannot be referred to the PHP, and non Board-referred physicians cannot be referred to the PRP. Referrals to the PHP can come from
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hospitals, practice groups, friends, family, or self-referral. The 2 programs have been described in detail in an article published in the Board newsletter that goes to all physicians licensed in Maryland, and it has also been described in the state medical society’s online newsletter. The program staff makes regular presentations at hospital Grand Rounds and to hospital Medical Executive Committees and have presented as well to County Medical Societies about the 2 programs. The Board has been under legislative pressure to reduce the backlog of cases, and they have also had greater confidence in the PRP, and this has increased the referrals to the PRP in the past 6 months. Referrals to the PHP have continued at a fairly steady pace. Beyond confidentiality and coercion, Boyd and Knight raised other concerns. They expressed particular concern about financial gain to programs from in-house evaluations and selfreferral; the recommendation of expensive and long lengths of stay in residential treatment centers that may depend on PHP referrals for their financial viability and might financially reward referring programs; programs advising against appropriate use of medication for various medical conditions, including acute and chronic pain; and the reporting to licensing boards of any and all positive tests without confirmation or review. The MPRP and the MPHP do not refer in-house; no one with decision-making authority on a case may serve as a private treatment provider, supervisor, or off-site monitor to a program participant. The program does not accept payment or contributions from residential treatment centers, and it considers participant preference, financial situation, and insurance coverage when recommending treatment centers and private clinician referrals. It defers to treating physicians on the management of medical illnesses. The Medical Directors confirm whether a positive test result qualifies for reporting. Nevertheless, there is no doubt that the Oversight Committee must be vigilant regarding potential conflicts of interest or inappropriate management of any participant’s particular rehabilitation plan. There are other potential conflicts of interest that Boyd and Knight do not address. For example, very important persons may be referred—individuals who potentially have power to influence funding decisions for or against the program—for instance, members of an oversight body, such as the Medical Society Board, the CFHM board, or the Licensing Board. The program refers these individuals to an extramural program to ensure objectivity in its assessments and advocacy. The dual structure provided by the MPRP and the MPHP has only been operative for 3 years. Thus, data are
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not available to allow us to say with complete assurance that our solution to some of the concerns voiced by Boyd and Knight (2012) is a viable one. We do take issue with a recent policy promulgated by the Federation of State Medical Boards (2012), that is, “The Board shall have authority over such (impaired physician’s) program and the ability to monitor or audit the program to ensure the program meets the requirements of the Board”. We believe that the roles of PHPs and licensing boards must be balanced, and that attention to structure and source of funding is one possible way of doing so. It is our belief that the rehabilitation of the impaired physician should be acceptable and available to those physicians who need it long before the impairment has become severe enough to require the licensing board to intervene. Even if only one physician makes use of it and only one patient is protected, it will have been worth it. And, for what it is worth, at this time, the numbers of physicians in the voluntary program are significantly greater then the numbers in the mandated program. We are in the process of obtaining outcome data and data on the differences between the participants in the 2 programs, but this is still in preliminary form and not reliable enough to share at this time, as we cannot have confidence about whether what we are seeing is sampling error or valid observations. REFERENCES Alpern F, Correnti CE, Dolan TE, et al. A survey of recovering Maryland physicians. Md Med J 1992;41:301–303. American Medical Association Council on Mental Health. The sick physician: impairment by psychiatric disorders, including alcoholism and drug dependence. JAMA 1973;223:684–687. American Medical Association Department of State Legislation, Division of Legislative Activities. Model Impaired Physician Treatment Act. Chicago, IL: American Medical Association Department of State Legislation, Division of Legislative Activities, 1985. Boyd JW, Knight JR. Ethical and managerial consideration regarding state physician health programs. J Addict Med 2012;6:243–246. Dupont R, McLellan AT, Carr G, et al. How are addicted physicians treated? A national survey of physician health programs. J Subst Abuse Treat 2009a;37:1–7. Dupont R, McLellan AT, White WL, et al. Setting the standard for recovery: physicians’ health programs. J Subst Abuse Treat 2009b;36:159–171. Federation of State Medical Boards. Essentials of a State Medical and Osteopathic Practice Act. 13th Ed. 2012:23–23. Available at http://www.fsmb .org/pdfGRPOL_Elements_Modern_Medical_Board.pdf. McLellan AT, Skipper G, Campbell M, et al. Five year outcomes in a cohort study of physicians treated for substance use disorders in the United States. BMJ 2008;337:2038. Platman S. The Med Chi Physician Health Program—helping is still our business. Md Psychiatr Soc News. 2004;14:5–6.
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Copyright © 2013 American Society of Addiction Medicine. Unauthorized reproduction of this article is prohibited.
Physician Health Programs The Maryland Experience Stanley Platman, MD, Thomas E. Allen, MD, Susan Bailey, MD, Chae Kwak, LCSW-C, and Stephen Johnson, JD
Background: This article briefly summarizes not only the history of physician health programs, including their singular success, but also their struggle to maintain the ethical integrity of the programs, their appropriate autonomy, and the privacy of physicians enrolled in them. Method: We review the history of the Maryland Physicians Health Program, how it initially developed and was funded, how the program became funded by the state, how this ultimately caused serious problems, and how these were eventually resolved. Results: Maryland was able to achieve a 2-program solution that protected both the voluntary participants while meeting the needs of the state licensing board for participants mandated by the state licensing board. This result has been well received by both the physician community and the state licensing board. Conclusions: How the problems were solved and the ultimate agreement provide a model for others to use. Key Words: autonomy and physician impairment programs, ethical issues in physician health programs, medical licensing board, oversight of physician health programs, physician health program, physician impairment, physician rehabilitation programs (J Addict Med 2013;7: 435–438)
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he American Medical Association Council on Mental Health (1973) first focused national attention on “The Sick Physician” in 1972, publishing its report on the subject the following year. The report acknowledged substance abuse as a frequent problem. It recognized the denial common in affected physicians and “an entrenched ‘conspiracy of silence’” within the profession itself. The report recommended persuading the impaired physician to get help, but if that strategy failed, referring the physician to the state licensing board. The report
From the Physicians Health Program (SP), Center for a Healthy Maryland Board Oversight Committee for the Impaired Physician Programs (TEA), Physicians Rehabilitation Program (SB), Impaired Physician Programs (CK), Center for a Healthy Maryland (SJ), Baltimore, MD. Received for publication March 30, 2013; accepted August 29, 2013. The authors report no conflicts of interest. Send correspondence and reprint requests to Stanley Platman, MD, Maryland Physician Health Program, Center for a Healthy Maryland, 1202 Maryland Ave, Baltimore, MD 21201. E-mail: [email protected]. C 2013 American Society of Addiction Medicine Copyright ISSN: 1932-0620/13/0706-0435 DOI: 10.1097/01.ADM.0000434988.43332.dc
noted that of 54 medical societies canvassed, 37 responded and only 7 indicated a medical society component addressing the “sick” physician problem. The report sparked interest in creating physician health programs (PHPs). Within 10 years of the American Medical Association report on “The Sick Physician”, only 3 of 54 medical associations in the United States had not taken action (American Medical Association Department of State Legislation, 1985). Most PHPs started out as committees overseeing programs sponsored and funded primarily by the state medical society. However, over time, other funding sources evolved, including health departments, malpractice insurers, hospitals, university training programs, charitable grants, and licensing boards. The success of these programs in treating physicians with substance use disorders has been extraordinary and has been noted in many publications (Alpern et al., 1992; McLellan et al., 2008; Dupont et al., 2009a, b). Of late, however, there has been an increasing trend for state licensing boards—or for contracted corporate programs, both for-profit and not-for-profit in nature—to operate PHPs. A recent commentary in the Journal of Addiction Medicine focused on the ethics of PHPs, many of which “receive a substantial portion of their funding from their state licensing Board” (Boyd and Knight, 2012). Besides detailing potential conflicts of interest, the commentary noted a coerciveness inherent in PHP operations—if a physician agrees to cooperate with a PHP, he can sometimes avoid disciplinary action by the state licensing board (hereafter referred to as Board). Yet he sacrifices his confidentiality, as details of his treatment and his compliance with monitoring are released to the Board. As the authors note, “ . . . once a PHP recommends monitoring, physicians have little choice but to cooperate with any and all recommendations if they wish to continue practicing medicine.” The issues of coercion and confidentiality are real and serious concerns regarding Board-mandated PHPs. One possible way of minimizing these concerns is separating a PHP as much as possible from Board funding and oversight. Programs without linkage to the Board can reach out to physicians who may seek to enter treatment voluntarily. As with most medical disorders, substance abuse problems that are recognized early on have the most favorable prognosis. Although licensing Boards have the ultimate authority for ensuring that the public is protected against incompetent physicians, it is the individual
J Addict Med r Volume 7, Number 6, November/December 2013
Copyright © 2013 American Society of Addiction Medicine. Unauthorized reproduction of this article is prohibited.
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Platman et al.
physician who must weigh the incentives and disincentives of engaging in treatment sooner rather than later. If PHPs could be structured to protect the confidentiality of physicians who voluntarily seek treatment and support, would more physicians seek treatment sooner? And would fewer physicians find themselves facing disciplinary action before the Board later? The Medical Society of Maryland (Med Chi), which has had to restructure its PHP and redefine its relationship with the Maryland Board of Medicine on several occasions, has had a unique opportunity to attempt to examine those questions.
THE MARYLAND EXPERIENCE 1978–2003 (PLATMAN, 2004) Med Chi initially established a Physician Rehabilitation Program (PRP) in 1978. Maryland was one of the first states in the nation to offer such a service to its physicians. The Maryland Medical Journal in 1992 described the program and the results of a survey of physicians who had completed the program. The rate of recovery was 86% for those with alcoholism, 90% for those with drug addiction, and 75% overall when other physical and mental illnesses were included. From 1978 to 1989, the Maryland program was funded by the medical society, although nonmembers were also served. In 1989, the state passed legislation that allowed a $50 assessment on medical licenses to be paid to Med Chi to operate the PRP. Although the state collected the fees and the licensing Board endorsed the collection, the money was not part of the state or Board budget. It passed directly to the PRP, which initially served only physicians and then physician assistants as well.
THE MARYLAND EXPERIENCE, 2003 to 2010 In 2003, in response to a sunset review of the Maryland medical licensing Board, the Maryland legislature removed statutory authority from Med Chi to operate the PRP. Authority to operate the program was instead given to the Board, despite a finding by the sunset review that the program was performing well and despite a recommendation that its funding be increased. The Board, under its new authority, issued a Request for Proposals (RFP) in an effort to bid out the PRP. Because of numerous concerns around confidentiality, staff autonomy, and potential conflicts of interest, Med Chi did not submit a bid. Neither did anyone else. A new 6-month emergency contract was enacted for Med Chi to continue managing the Maryland PRP. The Board then issued another RFP. It required all participants in the program, not just those under Board order, to sign a consent form for the PRP to release all information to the Board if so requested. Again there were no responders. Med Chi once more voiced privacy and confidentiality concerns regarding the Board’s RFP, citing a need to bring physicians into recovery programs voluntarily before they harm or endanger a patient, emphasizing that physicians who seek help early can avoid being reported to their licensing Board or to the National Practitioner Data Bank—reports that can harm a physician’s reputation and limit his or her ability to practice (hospital privileges, insurance panels, etc). Med Chi obtained an independent review of the Board’s RFP provision by an outside legal firm. The firm’s opinion was
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that the reporting provisions required by the Board would violate Health Insurance Portability and Accountability Act and federal confidentiality laws such as 42 Code of Federal Regulations part II, which was specifically enacted to encourage substance-using patients not already known to law enforcement or disciplinary agencies to enter treatment. The statute prohibits disclosure or use of protected information in “any civil, criminal, administrative, or legislative proceedings conducted by any Federal, State, or local authority.” Furthermore, punishments for violations of the law were serious and severe.
TWO PROGRAMS The Board disagreed with this opinion. Med Chi then offered a compromise: It would provide service to Boardreferred cases and release information to the Board if patients consented, but the Board must agree to exempt voluntary, non– Board-referred cases from having to disclose to the Board their participation. The Board-referred cases would be funded by the Board, and the voluntary participants would be funded through other sources. The Board refused this compromise and amended their RFP specifically to prohibit it. The resulting RFP was untenable for Med Chi to bid on, and no other bidders submitted proposals. The Board, in response, created its own PRP. Med Chi, in turn, created a new PHP into which impaired physicians could enter voluntarily. This PHP was structured in a fashion very similar to the original PRP. None of its funding, however, came from the Board. The program’s services included intervention, assessment, monitoring, and support. Since the program’s inception, roughly half of all physicians referred to it have chosen to enroll, approximately 80 physicians annually. The Med Chi PHP is now located in the Med Chi nonprofit subsidiary, the Center for a Healthy Maryland (CFHM). The program is supported by the medical society, hospital fees, physicians’ charitable contributions, and fees charged to users of the program.
A NEW RFP AND AN AGREEMENT Meanwhile, the Board discovered that the costs for its PRP were higher than expected. It also found that physicians did not choose to self-refer, and that federal and state regulations restricted the disclosures that could be made, thus preventing the direct access into participant files that the Board had deemed desirable. The Board then reentered into discussion with Med Chi. Med Chi and the Board agreed to support a statutory change, removing the Board’s responsibility to operate a program for self-referred practitioners. They further agreed on the following principles of operation for both the voluntary and mandated programs: 1. The Maryland Physician Health Program (MPHP) is separate and independent from the Maryland Professional Rehabilitation Program (MPRP). The MPHP is a voluntary program, and the Maryland Board of Physicians has no influence, authority, or access to information about participants in the MPHP. 2. Participants cannot be enrolled in both the MPHP and the MPRP at the same time. Participants in the MPHP who fall under Board Order or Disposition Agreement with the Board will be transferred to and only receive services C
2013 American Society of Addiction Medicine
Copyright © 2013 American Society of Addiction Medicine. Unauthorized reproduction of this article is prohibited.
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from the MPRP. There will be no exchange of information between the 2 programs without explicit written consent. The CFHM operates the MPRP under a contract with the Board to provide rehabilitation services to eligible practitioners. Practitioners eligible for the MPRP are physicians and allied health care professionals who have been formally determined by the Board to be in need of rehabilitation services and have either signed a Board Order or a Disposition Agreement to receive such services. The MPRP provides assistance to physicians and other allied health care professionals licensed by the Board with problems such as alcohol abuse, chemical dependency, or other physical, emotional, or mental health conditions that may affect their ability to practice medicine safely. The MPRP monitors the participant’s adherence to the rehabilitation requirements set forth in their Board Order or Disposition Agreement. The MPRP does not conduct assessments or evaluations of fitness for duty and/or impairment, or gather additional information for the purpose of adjudication by the Board. The Board makes the final determinations regarding the status of a case under its jurisdiction. The MPRP does not make declarations regarding a participant’s “compliance” or “noncompliance.” Participants in the MPRP will be informed of the terms, conditions, and events defined by the Board as “noncompliance,” and these will be designated “reportable events” by the MPRP. The Board will be the sole arbiter of “noncompliance.” The MPRP will provide information regarding “reportable events” to the Board, and the Board shall, at its own discretion, declare a participant “noncompliant.” The MPRP provides the following services: • Assessment and referral for clinically appropriate independent evaluation; • Development of an individualized rehabilitation plan; • Referral for treatment of any diagnosed problem to a clinically appropriate provider; and • Monitoring of adherence to the rehabilitation agreement and plan, including chemical screening of urine, breath, blood, hair, and, if needed, attendance at scheduled medical/therapy appointments, vocational monitoring reports, or other reports. Federal and state laws ensure the confidentiality of practitioners referred to the MPRP. Therefore, any release of information to external parties, including the board of physicians, requires explicit consents. Participation in the MPRP is voluntary. Eligible practitioners who refuse to sign the consent for services or consent for release of information to the Board will be referred back to the Board for other action.
THE OUTCOME The final agreement clearly established the limits of the authority of the Board and the MPRP and the responsibilities of each. It emphasized the program’s role in helping physicians enter into and maintain recovery, while insisting that the program not be drawn into fact finding of a prosecutorial nature during the Board’s investigation and adjudication of a C
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case. It further stipulated that a physician could choose not to participate with the program. If the physician did choose to participate, he or she was told before joining what the expectations of the program were and what were the reporting requirements to the Board. The results of this agreement seem at this point to be satisfactory to all parties. The Board is satisfied with the way that the CFHM is operating the PRP program and so are the participants. The voluntary PHP program continues to receive many referrals and has been very aggressive in reaching out to hospitals and the physician community, which have responded. The privacy of patients in the PHP program has been preserved, and the Board feels that it is getting the information in the PRP it needs to determine compliance with its orders. The Board contract funds the PRP, whereas the PHP is funded through hospital access fees, participants’ fees, and charitable contributions.
ORGANIZATIONAL STRUCTURE The MPHP and the MPRP are clinical programs that operate under the policy and financial oversight of the CFHM, a charitable affiliate of the Med Chi. The Center has fiduciary responsibility for the 2 programs and reviews and approves program budgets and policies. A subcommittee of the CFHM board, the Oversight Committee, meets on a monthly basis to review current caseloads, new referrals and admissions, outreach by staff to the hospital and physician community, income and expenses, and any special problems. It is not a clinical committee and does not review individual cases, but deals with administrative, ethical, and legal issues that arise and issues related to the budgeting for the programs. It reports on a quarterly basis to the CFHM board, making recommendations on policy and financial matters that the CFHM board, may or may not approve. The Oversight Committee is currently composed of 4 members of the CFHM board: 2 psychiatrists, 1 anesthesiologist, and 1 primary care physician. Staff to the Oversight Committee includes the medical directors of the programs, the clinical administrator of the programs, and the attorney for Med Chi and the Center. The Oversight Committee also meets on a quarterly basis with representatives of the Licensing Board, which recently has been less often because the Board has been undergoing changes. Participants in the PHP are not reported to the Board and the Board does not investigate participants in the PHP solely because they are in the PHP. The length of monitoring is at the PRP’s discretion, and any previous monitoring by the PHP is counted toward the overall length of the PRP’s monitoring. As noted earlier, the funding streams for the 2 programs are quite separate. The Maryland Board of Physicians entirely funds the PRP program, with money from a portion of the licensing fees that physicians pay in Maryland. The PRP is completely dependent on Board financing, whereas the PHP is completely independent of Board financing. The PHP continues to be funded through fees hospitals pay to the program to provide services to their medical staffs, fees charged to users of the program, charitable contributions, and support from the medical society. Board-referred physicians cannot be referred to the PHP, and non Board-referred physicians cannot be referred to the PRP. Referrals to the PHP can come from
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hospitals, practice groups, friends, family, or self-referral. The 2 programs have been described in detail in an article published in the Board newsletter that goes to all physicians licensed in Maryland, and it has also been described in the state medical society’s online newsletter. The program staff makes regular presentations at hospital Grand Rounds and to hospital Medical Executive Committees and have presented as well to County Medical Societies about the 2 programs. The Board has been under legislative pressure to reduce the backlog of cases, and they have also had greater confidence in the PRP, and this has increased the referrals to the PRP in the past 6 months. Referrals to the PHP have continued at a fairly steady pace. Beyond confidentiality and coercion, Boyd and Knight raised other concerns. They expressed particular concern about financial gain to programs from in-house evaluations and selfreferral; the recommendation of expensive and long lengths of stay in residential treatment centers that may depend on PHP referrals for their financial viability and might financially reward referring programs; programs advising against appropriate use of medication for various medical conditions, including acute and chronic pain; and the reporting to licensing boards of any and all positive tests without confirmation or review. The MPRP and the MPHP do not refer in-house; no one with decision-making authority on a case may serve as a private treatment provider, supervisor, or off-site monitor to a program participant. The program does not accept payment or contributions from residential treatment centers, and it considers participant preference, financial situation, and insurance coverage when recommending treatment centers and private clinician referrals. It defers to treating physicians on the management of medical illnesses. The Medical Directors confirm whether a positive test result qualifies for reporting. Nevertheless, there is no doubt that the Oversight Committee must be vigilant regarding potential conflicts of interest or inappropriate management of any participant’s particular rehabilitation plan. There are other potential conflicts of interest that Boyd and Knight do not address. For example, very important persons may be referred—individuals who potentially have power to influence funding decisions for or against the program—for instance, members of an oversight body, such as the Medical Society Board, the CFHM board, or the Licensing Board. The program refers these individuals to an extramural program to ensure objectivity in its assessments and advocacy. The dual structure provided by the MPRP and the MPHP has only been operative for 3 years. Thus, data are
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not available to allow us to say with complete assurance that our solution to some of the concerns voiced by Boyd and Knight (2012) is a viable one. We do take issue with a recent policy promulgated by the Federation of State Medical Boards (2012), that is, “The Board shall have authority over such (impaired physician’s) program and the ability to monitor or audit the program to ensure the program meets the requirements of the Board”. We believe that the roles of PHPs and licensing boards must be balanced, and that attention to structure and source of funding is one possible way of doing so. It is our belief that the rehabilitation of the impaired physician should be acceptable and available to those physicians who need it long before the impairment has become severe enough to require the licensing board to intervene. Even if only one physician makes use of it and only one patient is protected, it will have been worth it. And, for what it is worth, at this time, the numbers of physicians in the voluntary program are significantly greater then the numbers in the mandated program. We are in the process of obtaining outcome data and data on the differences between the participants in the 2 programs, but this is still in preliminary form and not reliable enough to share at this time, as we cannot have confidence about whether what we are seeing is sampling error or valid observations. REFERENCES Alpern F, Correnti CE, Dolan TE, et al. A survey of recovering Maryland physicians. Md Med J 1992;41:301–303. American Medical Association Council on Mental Health. The sick physician: impairment by psychiatric disorders, including alcoholism and drug dependence. JAMA 1973;223:684–687. American Medical Association Department of State Legislation, Division of Legislative Activities. Model Impaired Physician Treatment Act. Chicago, IL: American Medical Association Department of State Legislation, Division of Legislative Activities, 1985. Boyd JW, Knight JR. Ethical and managerial consideration regarding state physician health programs. J Addict Med 2012;6:243–246. Dupont R, McLellan AT, Carr G, et al. How are addicted physicians treated? A national survey of physician health programs. J Subst Abuse Treat 2009a;37:1–7. Dupont R, McLellan AT, White WL, et al. Setting the standard for recovery: physicians’ health programs. J Subst Abuse Treat 2009b;36:159–171. Federation of State Medical Boards. Essentials of a State Medical and Osteopathic Practice Act. 13th Ed. 2012:23–23. Available at http://www.fsmb .org/pdfGRPOL_Elements_Modern_Medical_Board.pdf. McLellan AT, Skipper G, Campbell M, et al. Five year outcomes in a cohort study of physicians treated for substance use disorders in the United States. BMJ 2008;337:2038. Platman S. The Med Chi Physician Health Program—helping is still our business. Md Psychiatr Soc News. 2004;14:5–6.
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