Schroeder, Robin MD; Brazeau, Chantal M.L.R. MD; Zackin, Freda Esq; Rovi, Sue PhD; Dickey, John MD; Johnson, Mark S. MD, MPH; Keller, Steven E. PhD
The professional and competent practice of medicine by physicians is a reasonable expectation of patients and society. The 10th Amendment of the U.S. Constitution authorizes each state to establish laws and regulations protecting the health, safety, and general welfare of its citizens. Pursuant to the 10th Amendment, each state enacted a medical practice act charging state medical boards with responsibility for granting licenses to physicians to practice in the state and to protect the public from the “unprofessional, improper, incompetent, unlawful, fraudulent and/or deceptive practice of medicine.”1 According to the Federation of State Medical Boards (FSMB), the national leader in the field of medical regulation, medical license “applicants must provide details about their work history, any arrests and convictions, and reveal information regarding past medical history that may affect their ability to practice.”2 There are many objective requirements for medical licensing, such as graduation from an accredited medical school, completion of a certain number of postgraduate years of training, and the successful completion of all parts of the National Board of Medical Examiners examinations. In addition, most licensing boards inquire about the physician's health (past and present) to determine competence to practice medicine. Hansen et al3 examined medical licensure applications from 1993 and 1996 for the presence of questions about previous mental illness, physical illness, and substance abuse. They found that 75% of applications in 1993, and 80% in 1996, asked questions about mental illness. In 1998, Sansone et al4 reviewed the medical licensing board applications from 47 states and found that 85% of applications included questions pertaining to mental health conditions. Hansen et al's3 study also recorded whether the questions addressed the effect of the condition on the applicant's “ability to practice” and not solely on past or present mental illness, physical illness, or substance use problem. The proportion of these applications inquiring about the effect of the mental disorder on “ability to practice” increased from 42% in 1993, to 75% in 1996. This is an important positive change because language that does not refer in some way to the “ability to practice” or that places additional requirements on an applicant with an affirmative response to a health inquiry may be a violation of the Americans with Disabilities Act (ADA) of 1990, a federal statute that prohibits discrimination on the basis of disability.
The ADA defines a disability as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”5 The ADA, and the regulations that implement and explain the ADA, provide numerous examples of what constitutes a disability, including sight and hearing impairments, chronic and contagious diseases, and cancer. Medical conditions that substantially limit one's ability to walk, talk, see, hear, and care for oneself all fall within the definition, as do many forms of mental illness, such as major depression or bipolar disorder, or a history of alcoholism or drug addiction currently in remission.5 Current illegal use of drugs and certain sexual behavior disorders (including pedophilia, exhibitionism, and voyeurism) are not considered disabilities and are not protected under the ADA. Title II of the ADA defines a “qualified individual with a disability” as “a[n] individual with a disability who, with or without reasonable modification to rules, policies, or practices… meets the essential eligibility requirements for the receipt of services or the participation in the programs or activities provided by a public entity.”5
Medical licensing boards are state governmental agencies charged with granting licenses to physicians to practice in the state. Therefore, they satisfy the definition of a “public entity” and are included in the Department of Justice (DOJ) regulations (28 C.F.R. Part 35.101 et seq) implementing Title II of the ADA.5 With respect to licensure, a physician is a qualified individual with a disability if he or she can satisfy the essential eligibility requirements for receiving the license or certification with or without accommodation. Licensing boards, such as state boards of bar examiners,6 and to a lesser extent, state medical boards, have been under scrutiny. Such entities have not only been the subject of litigation regarding the questions on licensing applications or associated release of information required of the applicant but have also been involved in subsequent inquiries following affirmative responses by applicants.7,8 The current literature does not adequately address these application questions in light of the ADA of 1990. This gap is identified in a current American Medical Association (AMA) policy statement, which says, “the AMA will… seek clarification of the application of the ADA to the actions of medical licensing and medical specialty boards.”9
The purpose of this review and analysis is to explore the legal permissibility of questions and associated release of information required of physicians on medical licensing applications that pertain to physical and mental health and substance use. Some have expressed concern that the presence of these questions on licensing applications may discourage physicians from seeking appropriate treatment because of fear of stigmatization, public disclosure, and effect on licensure.3,9,10 By identifying legally questionable items and providing examples of more appropriate questions, we hope to prompt state medical boards to change licensing applications so that they address the critical issue of physician competence7,8,10,11 and protect the public from impaired physicians without unnecessarily invading applicants' privacy or adding regulatory and workplace barriers to physicians seeking treatment.
In 2005, we obtained from the Internet 47 of 51 (50 states plus the District of Columbia) allopathic medical licensing applications. The remaining four applications were obtained by mail. Our research team at the University of Medicine and Dentistry of New Jersey (UMDNJ)–New Jersey Medical School consisted of a board-certified family physician (R.S.), a physician who was board certified in family medicine and psychiatry (C.B.), a sociologist (S.R.), a summer research medical student (J.D.), and an attorney (F.Z.). To identify questions and associated release of information requests about physicians' medical history and extract them for analysis, we first selected three random applications for review. The first four team members read all questions on the applications and located those items that inquired about or made reference to physical health, mental health, and substance use. Next, team members compared each others' selected items from the three applications to ensure there was agreement in the identification of relevant items. Then, three copies of the 51 applications were distributed such that two members of the team reviewed and extracted relevant items from each application. The extracted items were classified as mental health, physical health, or substance use. The attorney on our team (F.Z.) then reviewed the extracted items and evaluated them in accordance with the ADA and the small number of legal cases that have considered the appropriateness of specific professional license application questions. Some types of questions have been litigated in more than one jurisdiction, resulting in conflicting opinions. No single question has been upheld in one jurisdiction and struck down in another. Most were litigated with regard to licensing procedures for the legal profession. Using best judgment of current trends in ADA law, categories were created after reviewing the extracted items. We classified items as “Permissible,” “Likely Permissible,” “Likely Impermissible,” and “Impermissible.”
Permissible items were generally recognized as consistent with the ADA and consistent with one of the following subcategories:
1. Questions that elicit information concerning the applicant's current fitness to perform the essential functions of a physician, including questions about current physical or mental conditions that interfere with the applicant's job, school, or analogous activities. (Example: Do you have a physical or medical condition that currently impairs your ability to practice your profession?)
2. Questions concerning current or very recent substance use or illegal activity. (Example: Are you currently addicted to or dependent upon narcotics, intoxicating liquors, or other substances?)
3. Questions that are specifically excluded from ADA protection. (Example: Have you ever been diagnosed as having or have you ever been treated for pedophilia, exhibitionism, voyeurism, or other sexual behavior disorders?)
Questions were likely permissible if they had been upheld in at least one jurisdiction and were consistent with one of the following subcategories:
1. Courts have upheld questions that would otherwise be impermissible because they elicit information about serious disorders that experts in those cases indicated are likely to interfere with an applicant's current ability to practice. (Example: Have you in the last ten years or since the age of 18 been treated for or hospitalized for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder? [Applicants v. Texas State Board of Law Examiners, WL 923404 (W.D.Tex 1994)]).
2. One jurisdiction addressed a question which would have been impermissible if asked of the applicant directly, but which was upheld because the question was directed to an applicant's reference, which the court determined imposed no additional burden on the applicant. (Example: To references: Do you have knowledge of any drug or alcohol dependency or abuse by the applicant during the previous ten years or know of any emotional, mental, behavioral or nervous affliction?[McCready v. Illinois Board of Admissions to the Bar, WL 29609 (N.D.Ill 1995)]).
We considered questions to be likely impermissible if they had been struck down in at least one jurisdiction and were consistent with one of the following subcategories:
1. Courts have struck down questions that elicit information that is too remote in time to be necessary to evaluate an applicant's current fitness to practice. (Example: Within the ten year period prior to the date of this application, have you ever received treatment of emotional, nervous, or mental disorder?[Underwood v. Plano, WL 649283 (Me.1993)]).
2. Courts have struck down questions that are so broad in scope that they elicit information concerning illnesses or treatment which may not be relevant to the applicant's current fitness to practice, such as grief counseling, marital counseling, eating disorders, etc. (Example: Have you within the past five years, been treated or counseled for any mental, emotional, or nervous disorders?[Clark v. Virginia Board of Bar Examiners, 880 F. Supp. 430 (E.D. Virginia 1995)]; [Doe v. Fifteenth Judicial Circuit of Florida, 906 F. Supp. 1534 (S.D. Florida 1995)]).
Questions that were clearly inconsistent with the ADA, had been struck down in more than one jurisdiction, or were consistent with one of the following subcategories were deemed impermissible:
1. Questions about past diagnoses, treatment, or physical or mental conditions that specify no time limitation or are not necessarily related to the applicant's fitness to perform the essential functions of a physician infringe rights protected under the ADA. (Examples:  Have you ever been hospitalized, institutionalized or admitted to any medical or mental health facility [either voluntarily or involuntarily] for treatment or evaluation for any emotional disturbance, nervous or mental disorder?[In re Petition and Questionnaire for Admission to the Rhode Island Bar, 683 A. 2 days 1333 (R.I.1996)];  Have you ever sought treatment for a nervous, mental or emotional condition or ever been diagnosed as having such a condition or ever taken any psychotropic drugs?[Ellen S. v. Florida Board of Bar Examiners, 859 F. Supp. 1489 (S.D. Fla. 1994)])
2. Questions that elicit information about an applicant's record of disability or “status,” rather than current or future ability to perform. (Example: State whether you have, since attaining the age of 18, been adjudged an incompetent, or had proceedings brought to have you adjudged an incompetent, or been committed to or been a patient in any institution for the care of persons suffering from mental or nervous disorders or drug addiction, drug abuse, or alcoholism. [Dicta in Campbell v. Greisberger, 865 F. Supp. 115 (W.D. N. Y. 1994)]).
3. Questions related to past disabilities that trigger additional burdens, such as submission of additional documents, medical records, or personal appearances, that are not required of applicants who have no record of a disability. (Example: Have you ever suffered or been treated for any mental illness or psychiatric problems? If the applicant answers in the affirmative to any of these questions, he or she is required to have any “treating physicians […] submit directly to the board office, a summary of the diagnosis, treatment and prognosis relating to any of the above.” [Medical Society of New Jersey v. Jacobs, WL 413016 (N.J. 1993)])
The attorney involved who developed these categories (F.Z.) was selected for this study because of her extensive experience in disability issues at UMDNJ. She was a director of the Office of Legal Management at UMDNJ for more than 20 years, responsible for in-house legal advice in all matters pertaining to application of the ADA to faculty, resident, and student matters. She developed and interpreted university policies and procedures to address issues concerning impaired faculty and students, health and immunization requirements, students with disabilities and requests for accommodations, HIV, hepatitis B virus, and hepatitis C virus health and safety, privacy of protected health information, and health care ethics. She served on university committees to determine eligibility of students with infectious diseases to participate in educational programs and to review and approve requests for accommodations for disabilities. She has been a member of the university legal defense team in more than 10 cases in which faculty, students, and residents have alleged discrimination on the basis of disability.
This study was classified as exempt by the UMDNJ institutional review board.
Our attorney reviewed a total of 248 questions across all 51 licensing applications. Two applications (4%) did not have any questions regarding physical or mental health or substance use. Of the 49 remaining applications, 38 (78%) included items about physical health, 42 (86%) included items about mental health, and 49 (100%) included items pertaining to substance use. One hundred nine (44%) questions were categorized as permissible, 66 (27%) were likely permissible, 42 (17%) were likely impermissible, and 31 (12%) were impermissible (Table 1). Thirty-four of these 49 (69%) state medical licensing applications contained at least one “likely impermissible” or “impermissible” item.
Applications often require a complete explanation of affirmative answers from the treating health care provider or applicant, including notarized documentation of diagnosis, treatment, and prognosis. Forty-four (86%) of the applications required the applicant to provide additional information, often on a separate piece of paper or in the form of a sworn affidavit, to explain the medical condition or history of substance use (generally defined to include alcohol and drug use). Four (8%) of the applications do not require additional written explanation; however, in these cases the applicant must sign a release of information authorizing access to personal medical records when a question is answered “yes.” One state has a public records law that does not require disclosure of personal medical information unless it can be shown that the public interest requires disclosure in a particular instance.
To practice medicine in the United States, physicians must obtain a license through the state medical board. Each state medical board must protect the public from the “unprofessional, improper, incompetent, unlawful, fraudulent and/or deceptive practice of medicine.”1 The FSMB states that “applicants must provide details about their work history, any arrests and convictions, and reveal information regarding past medical history that may affect their ability to practice,”2 but many state applications do not include the “ability to practice” qualifier. Some ask direct medical history questions, including questions regarding physical or mental illnesses in the remote past. Many of these inquiries are included within a larger list of nonmedical questions for which follow-up is required (e.g., prior discipline or loss of license or privileges, malpractice, criminal history). The placement of these questions within such lists puts physician illness in a punitive context within the application. An affirmative response to any of these questions may precipitate a detailed review and interview by the state licensing board, a process not specifically described in the application. Records of such inquiries by state medical boards may be shared with other state medical boards through the FSMB and, in some states, are available to the public.12 Additionally, an affirmative response to one of these questions usually requires additional documentation from treating physicians, hospitals, or other health care providers.
Regulations developed by the DOJ to implement the ADA (28 C.F.R. Part 35.101 et seq) prohibit policies that unnecessarily impose requirements or burdens on otherwise qualified individuals with disabilities that are greater than the requirements or burdens imposed on nondisabled persons. Questions that require follow-up only from applicants who admit having a medical condition place an extra burden on applicants with disabilities while not imposing the same burden on nondisabled applicants. The only and, therefore, most prominent case on the issue of medical license applications and disability discrimination arose in the U.S. District Court in New Jersey in 1993. Although this case is unpublished, it is widely available for reference and has been cited in several subsequent cases involving state bar associations. In that case, the Medical Society of New Jersey brought suit against the New Jersey State Board of Medical Examiners, seeking an injunction (court order) that would require the state board to remove certain questions from its licensing applications and renewal forms.13 All of the disputed questions involved issues of medical condition, medical history, and drug and alcohol use/abuse. The court denied the medical society's motion because there were insufficient grounds to grant an injunction. Nevertheless, the court found fault with the licensing questions, stating, “The Court is confident that the Board can formulate a set of effective questions that screen out applicants based only on their behavior and capabilities.” So, it is the conduct of the physician, not an illness, that determines fitness to practice.13 The court also stressed that it is the extra investigations of qualified applicants who answer “yes” to one of the challenged questions that constitutes “invidious discrimination under the Title II regulations.”13 The New Jersey board subsequently changed the disputed questions on the application. The AMA supports this view in a current policy that “urges licensing boards, specialty boards, hospitals and their medical staffs, and other organizations that evaluate physician competence to inquire only into conditions which impair a physician's current ability to practice medicine.”11
Many health and safety professionals are required to complete applications for licensure or certification that contain questions similar to those we have identified as ADA noncompliant. The comments and recommendations that we make regarding the medical licensing application questions should be applied to these as well. We recommend that medical licensing application questions regarding physician health be written similarly to these which have been taken directly from two state applications: Are you currently experiencing any medical condition or disorder that impairs your judgment or that otherwise affects your ability to practice medicine in a safe and competent manner? or Do you currently have a medical condition which in any way limits or impairs your ability to practice medicine or to function as a physician? Once initial questions focus on the ability to practice instead of on medical conditions, then additional information related to the applicant's need for accommodation may be obtained.
The medical profession does not encourage physicians to admit health vulnerability or to seek help. There is scant current literature describing physicians' use of mental health services, although barriers to seeking services appear to be many.14 Physicians may seek treatment from a trusted colleague in an unofficial manner, they may treat themselves, or they may go untreated. There is a realistic concern that the presence of these inappropriate questions on licensing applications may discourage physicians from seeking appropriate treatment because of fear of stigmatization, public disclosure, and effect on licensure.3,14–16 Licensing application questions may be just one barrier physicians encounter when seeking treatment, but this is one that can be changed. Distressed physicians who are untreated, especially for mental health disorders, actually have an adverse effect on public safety because they may be less likely to identify and treat similar disorders in their patients14 and may be more prone to medical errors in daily practice.15 Thus, although detailed questions about physician health on medical licensing applications may appear to better fulfill the board's responsibility to protect the public, intrusive, ADA-noncompliant questions may defeat this very purpose and have an adverse effect on physician health and on the health and safety of the public. From our analysis it appears that, in many states, a balance has not yet been achieved.
The authors acknowledge and thank Douglas Zucker, attorney with Schenck, Price, Smith & King, LLP, Morristown, New Jersey, for the legal research conducted for a similar pilot study in 1998.
This study was supported by the Department of Family Medicine, University of Medicine and Dentistry of New Jersey-New Jersey Medical School.