The Challenges of “Intrusive Questions” and a Changing Landscape

The core responsibilities of hospitals and their medical staffs are the promotion of patient safety and the quality of care rendered to patients in the hospital. Federal and state law require that medical staffs evaluate the qualifications and fitness of all eligible candidates for medical staff membership and privileges. Among the many mandated bylaws provisions that govern medical staffs is the requirement of formal procedures for the evaluation and assistance of medical staff members impaired by chemical dependency and/or mental illness. The Joint Commission (TJC) Medical Staff (MS) Standards require that hospital medical staffs implement “a process to identify and manage matters of individual health for licensed independent practitioners” that is separate from actions taken for disciplinary purposes.

Notwithstanding these mandates, identifying and addressing the physical and mental wellbeing of providers has been one of the most daunting challenges confronting hospitals and their medical staffs even before the COVID-19 pandemic. In its 2018 report Physician Wellness and Burnout, the Federation of State Medical Boards (FSMB) cited a 2012 study showing 45.5% of surveyed physicians demonstrated at least one symptom of burnout. A similar study three years later by the same authors showed an increase of 9% in burnout and work-life dissatisfaction. The 2018 FSMB report continued, “In addition to the obvious risks to patient safety, an alarming and extreme result of physician burnout has been the disproportionate (relative to the general population) levels of suicide in recent years by physicians, medical residents and even medical students.”

The COVID-19 pandemic intensified the challenges as providers worked heroically through extremely difficult circumstances. One of those providers, Lorna Breen MD, an emergency room physician in New York City, died by suicide in April 2020 following an intense stretch treating COVID-19 patients. Most significant was Dr. Breen’s family’s report that “her chief concern wasn’t her failing health, it was the fear of losing her medical license or that she would get a reputation as someone who couldn’t handle pressure if she sought help.”

Dr. Breen was not alone in her concerns. A 2016 study reported that of 2,106 female physicians surveyed, “Almost 50% . . . believed that they had met the criteria for mental illness but had not sought treatment. Key reasons for avoiding care included a belief they could manage independently, limited time, fear of reporting to a medical licensing board, and the belief that diagnosis was embarrassing or shameful.” A 2022 survey by the Physicians Foundation similarly reported that nearly four in ten physicians feared seeking mental health care due to questions asked in licensure, credentialing, or insurance applications. 

The 2016 study observed: 

A unique barrier to successful diagnosis and treatment of mental disorders among physicians and other professional groups such as lawyers is that in many states, these professionals are required to report any mental illness diagnosis or treatment to their state licensing board.

Although in some states’ questions are limited to illness which impairs or may impair their work performance, other states ask blanket questions about whether the physician has been diagnosed or treated within the last 2, 5, 10 years or even ever in their lifetime. A 2009 review found 42/51 (86%) of state licensing applications had questions about mental health [citation]. Physician disclosure of such a diagnosis, even for a common, stable and easily treatable lifelong condition such as anxiety or depression may lead to a range of adverse consequences depending on the state.

In response, a growing consensus is advocating for an examination of the degree to which the licensing and credentialing processes, through broad inquiries regarding mental health, actually work against the goal of assisting providers and protecting patients. The 2018 FSMB report took this issue head on and made specific recommendations to state licensing boards regarding their applications process, including that questions on state medical licensing applications be limited to:

Are you currently suffering from any condition for which you are not being appropriately treated that impairs your judgment or that would otherwise adversely affect your ability to practice medicine in a competent, ethical and professional manner? (Yes/No)

In a statement issued on May 12, 2020, the Joint Commission broadened the discussion to hospital medical staffs. In “Removing Barriers to Mental Health Care for Clinicians and Health Care Staff” and a later reiteration, TJC urged hospitals not to ask about past history of mental health conditions or treatment and, if necessary, adopt FSMB’s recommended limitation of questions regarding a clinician’s history.

In response to their tragedy, Dr. Breen’s family has also played a major role in reform efforts. In 2020, the family created the Dr. Lorna Breen Heroes’ Foundation (Dr. Breen Foundation) and was the driving force behind Congress’ passage of The Dr. Lorna Breen Health Care Provider Protection Act. The legislation’s focus is the support of health care workers’ mental health and wellbeing through a variety of initiatives. Included in that effort has been a specific focus on “intrusive questions” asked by licensing, employment, and credentialing bodies as part of their application processes.

This article examines the reform efforts and their implications for hospital medical staffs. Those advocating for reform argue that broad inquiries regarding past diagnosis and treatment of mental illness reflect prejudices that incorrectly assume that past mental health and substance abuse issues, unlike physical conditions, are intractable to treatment and forever pose a risk of resurfacing in ways that threaten patients. They argue that those long held prejudices explain the broad nature of the traditional application questions and that the processes for identifying potential patient safety risks and clinicians are both harmed by the standard approaches.  

Hospital Medical Staffs Applications and Evaluation of Physician Fitness

As with licensing boards, hospital medical staff applications for initial appointment and biannual reappointment contain requests for a broad spectrum of information bearing on an applicant’s qualifications and fitness to provide safe patient care. These include whether the applicant has been the subject of any adverse actions by licensing boards or regulatory bodies, discipline by other hospital medical staffs, criminal convictions, and professionally liability actions.

With respect to medical conditions, applications routinely ask whether the clinician has any present physical or mental health condition, including alcohol or chemical dependency, that would likely impair the applicant’s ability to exercise clinical privileges. Questions regarding past history of mental health issues have taken different approaches, but generally ask whether the applicant has a history of past illegal drug use or drug prescribing, past mental health treatment, or any past enrollment in a rehabilitation program. There are also variations in how far back in time any mental health issue substance abuse occurred, e.g. two, five, or ten years. 

The broad nature of the questions is driven by the fear of the potential consequences for hospitals and medical staffs that fail to carry out their oversight responsibilities. Beyond the risk to patients, failure to properly carry out its quality oversight responsibilities can have significant consequences for hospitals from accreditation, licensing, and regulatory bodies. In addition, all states now recognize the application of corporate negligence liability to hospitals by patients injured by a physician who the hospital and/or medical staff knew, or should have known, was unfit to practice.

At the same time, medical staffs have specific obligations to clinicians seeking medical staff membership and privileges, including maintaining confidentiality in addressing physician wellbeing. These obligations exist precisely because of the physician’s right to privacy and the concern that clinicians will not seek assistance if they believe a health issue, particularly one involving mental health or substance abuse, will be used to restrict their hospital privileges.

TJC mandates that medical staffs establish Physician Wellbeing Committees as the primary mechanism used to manage health issues of practitioners. MS Standard 11.01.01 specifically directs that the wellbeing process be separate from the disciplinary process in hospital bylaws, but then provides that:

Maintenance of the confidentiality of the licensed independent practitioner seeking referral or referred for assistance, except as limited by law, ethical obligation, or when the health and safety of a patient is threatened [emphasis added].

The requirement for reporting and addressing a clinician’s threat to patients highlights the tension in the process. While the goal of the wellbeing committee structure is to provide confidential, non-disciplinary assistance for practitioners, the medical staff is required to investigate and initiate corrective action to address any behavior and/or care posing a threat to patients whatever its underlying cause. Behavior or poor care caused by an underlying mental illness or physical condition must still be addressed if they jeopardize safe care for patients. Indeed, the Americans with Disabilities Act (ADA) and other federal and state disability discrimination laws provide a specific defense to a claim for discrimination if the allegedly discriminatory restrictions are imposed based in the reasonable belief that the observed behavior or care creates a “direct threat” to the safety of the public, i.e., patients in the hospital context.

Overview of Disability Discrimination Laws and Inquiries Regarding Health Conditions

While the FSMB, TJC, and Breen Foundation have been major forces behind the current reform efforts, the issue of overly broad and intrusive questions regarding mental health history is not new. In 2009, the American Medical Association (AMA) Section Council on Psychiatry approved a resolution requesting that medical licensing bodies eliminate questions about past mental illness. The same year, a group of physicians wrote an extensive review titled “Do State Medical Board Applications Violate the Americans with Disabilities Act?” They concluded:

Many licensing applications appear to be in violation of the ADA, even 19 years after enactment of the regulation. These questions do not elicit responses by which professional competence can be judged. The presence of these questions on licensing applications may cause physicians to avoid or delay treatment of personal illness.

In the employment context, the ADA specifically limits preemployment examinations or inquiries regarding disabilities, providing:

1. Prohibited examination or inquiry: Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.
2. Acceptable inquiry: A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions.

The ADA does permit a covered entity to require a medical examination, but only “after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination.” 

Legal Challenges to Overly Broad Inquiries into Mental Health History

Two legal proceedings have addressed the legality of “intrusive” or broad inquiries into mental health questions in applications to licensing bodies. While important in this discussion, it is noteworthy that the primary focus of the reform efforts initiated by the FSMB, TJC, Breen Foundation, and others has not been the ADA and other disability discrimination laws. Instead, the focus has been on empirical and other evidence of the barriers and negative consequences created by broad inquiries. That said, the Jacobs case involving applicants for medical licensure in New Jersey, and the U.S. Department of Justice (DOJ) action arising from questions of applicants to the Louisiana Bar, bring an important data point to the discussion.

Medical Society of New Jersey v. Jacobs

In 1993, a federal district court addressed a physician’s challenge under Title II of the ADA to the New Jersey medical license application. The New Jersey Medical Board asked initial applicants to state whether in the previous ten-year period: “Have you ever suffered or been treated for any mental illness or psychiatric problems? Have you ever been treated for alcohol or drug abuse? Have you ever been dependent on alcohol or Controlled Dangerous Substances?” In applications for renewal of licensure, the questions asked whether within the previous ten years: “Are you presently or have you previously suffered from or been in treatment for any psychiatric illness? Have you been terminated by or granted a leave of absence by a hospital, health care facility, HMO, or any employer for reasons that related to any physical or psychiatric illness or condition?”

Relying upon the ADA and New Jersey state anti-discrimination regulations that prohibit the “imposition of extra burdens on qualified individuals with disabilities when those burdens are unnecessary,” the U.S. District Court for the District of New Jersey concluded the questions were discriminatory and unnecessarily burdensome. The Court found that the questions were being “used as a ‘screening’ device to decide on whom the Board will place additional burdens. Because of the exceedingly broad nature of most of the questions, these additional burdens are falling, in probably the vast majority of cases, upon qualified individuals with disabilities.” It concluded, “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.” Notably, the case is unpublished and was dismissed based on plaintiff ’s lack of standing.

DOJ Settlement with Supreme Court of Louisiana over Intrusive Questions of Bar Applicants

In 2014, DOJ announced a settlement with the Louisiana Supreme Court which oversaw the licensure of applicants to practice law in the state. DOJ alleged that the broad questions on the application for admission to the Louisiana State Bar regarding the mental health history of applicants violated the ADA. Among DOJ’s findings accepted by the Louisiana Supreme Court in the settlement was that “Questions about mental health diagnosis and treatment are counterproductive to licensing entities’ interest in attorney fitness because individuals who would benefit from mental health treatment may be deterred from obtaining it by the knowledge that they will have to disclose their treatment to licensing authorities.”

In its announcement of the settlement, DOJ asserted that the ADA prohibited the court from asking unnecessary and intrusive questions about bar applicants’ mental health diagnosis or treatment. The Department found that diagnosis and treatment, without problematic conduct, did not effectively predict future misconduct as an attorney and did not justify restrictions on admission.

Hospital Medical Staffs and the Applicability of the ADA

While the findings in Jacobs and the DOJ settlement with the Louisiana Supreme Court create an important reference point, there are no cases we are aware of addressing this issue in in the context of hospital medical staffs in their appointment and reappointment applications. The Jacobs case is unpublished and no courts beyond Jacobs have reviewed or held that “intrusive questions” on applications violate the ADA or other disability discrimination statutes. In addition, the New Jersey and Louisiana challenges were brought against state licensing agencies that are specifically covered by Title II of the ADA, which does not apply to hospitals.

There is a divide in cases examining whether the ADA applies at all to hospital medical staffs in disability discrimination claims by physicians arising from restrictions on their privileges. In cases alleging violations by employers under Title I of the ADA, courts have found that medical staff membership creates an independent contractor relationship and therefore Title I is not applicable.24 The Ninth Circuit found the opposite under the Rehabilitation Act in Fleming v. Yuma Regional Medical Center.  

In a claim under Title III of the ADA, which applies to public accommodations, the Third Circuit held in Menkowitz v. Pottstown Mem’l Med. Ctr. that the plaintiff orthopedic surgeon’s membership on the medical staff rendered him a member of the public who was denied the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of the hospital. Multiple courts have rejected the Menkowitz conclusion, holding that Title III is limited to prohibiting disability discrimination solely against customers and patrons of the public accommodation and does not extend to employees or contractors of those public accommodations.

While not authoritative or necessarily predictive, the decision of the New Jersey Court and the DOJ position in Louisiana state bar case certainly provide food for thought in the analysis. At the very least, there is no clear answer to what a court may do in such a challenge. We find it interesting, however, that the reform efforts have not been based on legal questions, but rather empirical evidence and concerns regarding the deterrence on clinician’s seeking needed care. The question of disability discrimination does not in any significant way appear to be driving the momentum created by the 2018 FSMB report, TJC, and the Breen Foundation. 

The Response to the FSMB 2018 Report

In addition to its recommendation to eliminating intrusive questions on licensing applications, the 2018 FSMB report recommended that if licensing boards elected to continue past practices, a careful review should be conducted to address the potential for stigmatizing effects of the specific wording of  questions. It also contained recommendations for hospitals and their medical staffs, including that they revise questions in the credentialing process to ensure that the questions are not discouraging physicians or other health professionals from seeking needed treatment.

As discussed above, TJC has encouraged hospitals not to ask about past history of mental health conditions or treatment, or alternatively, as recommended by the FSMB and AMA, to limit inquiries to conditions that currently impair the clinicians’ ability to perform their job.

Other organizations have since weighed in and urged the same approach, These include the AMA, the Breen Foundation, the National Association of Medical Staff Services, and the National Institute for Occupational Safety and Health at the Centers for Disease Control and Prevention.

The Dr. Breen Foundation and AMA Initiatives

Since the passage of the Dr. Lorna Breen Health Care Provider Protection Act in 2022, $103 million has been distributed “across 45 organizations to implement evidence-informed strategies that reduce and prevent suicide, burnout, mental health conditions, and substance use disorders.”  The Foundation’s ALL IN Wellbeing First Champions initiative provides a toolkit for credentialing organizations and recognizes licensing boards, hospitals, and health systems that have adopted the FSMB recommendations. The Dr. Breen Foundation recently reported that:

As part of the coalition’s Wellbeing First Champion Challenge program, a record 34 licensure boards and 375 hospitals have verified that their licensing or credentialing applications are free from intrusive mental health questions and stigmatizing language as of September 1, 2024. This collectively benefits more than 1.1 million licensed and 115,000 credentialed health workers.

The 2024 AMA Advocacy Research Center Issue Brief Campaign to support medical student, resident and physician health and wellbeing reported that nearly all hospitals in the Commonwealth of Massachusetts and the Federation of State Physician Health Programs had adopted changes to application questions. It further reported leading health systems that have removed stigmatizing language include HCA Healthcare; Geisinger; Envision Healthcare; Northwell Health; Henry Ford Health; Pacific Source; Northeastern Vermont Regional Hospital; UC (CO) Health; GoHealth Urgent Care; and more. The process of removing stigmatizing language from credentialing applications is also a criterion in AMA’s Joy in Medicine™ Health System Recognition Programs.

State Legislative Initiatives

Several states are considering legislation to address the issue. In Minnesota, the legislature passed an amendment, effective January 1, 2025, to existing statutory requirements that prohibits “an application for provider credentialing” to a health plan from requiring that a provider disclose:

(1) past health conditions; (2) current health conditions “if the provider is being treated so that the condition does not affect the provider’s ability to practice medicine”; or (3) any health conditions that “would not affect the provider’s ability to practice medicine in a competent, safe, and ethical manner.”

In March 2023, Virginia enacted legislation that directs regulatory boards within the Department of Health Professions to amend language related to mental health conditions and impairment in licensure, certification, and registration applications.

Legislation currently pending in California (AB 2154) would prohibit the state’s medical board from requiring that an applicant for licensure disclose either “a condition or disorder that does not impair the applicant’s ability to practice medicine safely; or a condition or disorder for which the applicant is receiving appropriate treatment and which, as a result of the treatment, does not impair the applicant’s ability to practice medicine safely.” Notably, AB 2154 does not prohibit the medical board from “requiring an applicant to disclose participation in a mental health or substance use disorder treatment program, including an impaired practitioner program, resulting from an accusation or disciplinary action brought by a licensing board in or outside of California.”

Conclusion

Given this changing landscape, hospital medical staffs are well advised to weigh the developments discussed in this article. While we are unable to cite to any authoritative court decision on the question of whether a hospital medical staff asking for mental health history in an application is a per se violation of the ADA or any state disability discrimination laws, the trend in the licensing and credentialing space currently appears to be moving in favor of reform efforts.

Copyright 2024, American Health Law Association, Washington, DC. Reprint permission granted.