By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On April 1, 2018, U.S. District Court Judge Arthur J. Tarnow approved a crucial step in a class action lawsuit filed against the Michigan Health Professionals Recovery Program (HPRP) brought by a group of medical professionals.An Abuse of Power?
The Michigan HPRP was originally designed to monitor health care professionals suffering from a mental health or substance abuse impairment that affected their ability to safely work in their chosen medical profession. A group of health professionals filed suit and claimed the program was abusing its authority and demanding medically unnecessary treatment backed up with the threat of license suspension. The Defendants filed a motion to dismiss which was denied in part and granted in part in a recent federal court ruling. To read the order denying HPRP’s motion to dismiss, click here.
Judge Tarnow found that Michigan health professionals were intended beneficiaries of the state contract for HPRP. Therefore, they could, in fact, sue to enforce the terms of the contract as third party beneficiaries. This decision is groundbreaking because it is the first time that a federal judge has found that physician health program (PHP) participants are intended beneficiaries of a state physician health program’s contract. Currently, most states do have some form of PHP. However, there are allegations that many are plagued with mismanagement and abuses, including conflicts of interest and being operated to make a profit. As a result of the judge’s ruling, health professionals may have added leverage to demand strict enforcement of their State’s PHP contract.
Additionally, Judge Tarnow found that health professionals with substance abuse issues or those who are falsely believed to have substance abuse issues qualify for protection under the Americans with Disabilities Act (ADA). This move is favorable for the health professional community, especially those individuals facing addiction issues. It sends a clear message to PHPs that they cannot breach their contracts or engage in disability discrimination without being held accountable for their actions.
To read the class action complaint filed against HPRP, click here.
To learn more about how The Health Law Firm can assist you in situations like this, please visit our Areas of Practicepage on our website.
Click here to read one of my prior blogs about the Professionals Resource Network (PRN) Evaluation for all Applicants with History of Mental Problems or Substance Abuse.
The Florida Department of Health‘s (DOH) “impaired practitioners program” is administered by the Professionals Resource Network (PRN) and the Intervention Project for Nurses (IPN). IPN is responsible for all nurses and works with and through the Florida Board of Nursing. The Florida Board of Medicine and all other professional licensing boards in the DOH have contracted with and use the services provided by Professionals Resource Network (PRN).
There have been criticisms aired in the media regarding these programs. In order to be sure you are fully aware of all sides of the situation, you may want to review these, at:
Contact a Health Law Attorney Experienced in the Representation of Health Care Providers in Board of Pharmacy Cases.
The Health Law Firm and its attorneys are experienced in dealing with the Board of Pharmacy, PRN, and licenseapplications. Our attorneys can help you get your application and supporting documentation together and present it to the Board in the most effective way possible.
Our firm has extensive experience in representing physicians, nurses, pharmacists and other professionals accused of drug abuse, alcohol impairment, mental impairment and sexual boundary issue, as well as in dealing with the Professionals Resource Network (PRN), its advantages and disadvantages, its contracts, its personnel, and its policies and procedures.
For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.
“Federal Judge Gives “Green Light” On Class Action Against HPRP, Michigan’s Professional Health Program (PHP).” Chapman Law Group. (April 1, 2018). Web.
“The Americans with Disabilities Act (ADA).” ADA. (April 23, 2018). Web.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
12 thoughts on “Federal Judge Allows Class Action to Proceed Against Michigan’s Professional Health Program in Groundbreaking Decision”
EXCELLENT ! ANd it should move forward. Keep us informed of the trial date . good News. !
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Am happy these lawyers actually fought for their clients. Nice!
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BIG KUDOS to the four primary plaintiffs in this class action suit and to the judge who is allowing this suit to go forth as well. The primary complainants are three RNs and a PA. Cheers to our movement’s nursing contingent. And Cheer to the physician assistants as well. We are all in this together. It is hard to believe how power hungry and money-grubbing the Healthcare Regulatory Boards (HRB) and Healthcare Professional Health Program (HPHP) syndicate has become. Autocratic regimes ALWAYS fall. How many ways can this be said? Pride goeth before a fall? The “higher” you climb …? Absolute power inevitably, eventually, meets with COMPREHENSIVE failure. How stupid was the HRB/HPHP syndicate to think they take arbitrary and capricious control of us ALL? In my experience with HARBR, we haven’t had many nurse or physician assistant participants. Just recently, we has the good fortune of gaining a powerful new nurse member. At it’s inception, HARBR was merger against a common enemy in Oregon plus some pre-existing structure from some physicians who had be gun to organize. Oregon Physicians, PAs, Psychologists, Psychologist Associates, and Counselors & Therapists were all being assaulted by a common board legal counselor by the name of Warren Foote. We had some members from other healthcare professions as well as members outside of Oregon. The simple point is one of the power of joining forces. Now, if it hasn’t been clear before, we in the other healthcare professions wish to support and join with nurses and physician assistants in out common fight. We ask for support from the same, and to our nurse and physician assistant colleagues, we extend invitation to join our organizational structures.
We will regain our rightful feelings of dignity associated with our noble professions. We will reestablish the structure which puts patients first, employs honest science, and values justice for ALL (not excluding our good healthcare professionals).
Once again, thank you to the plaintiffs, the attorneys, and the judge(s) and or juries involved in this righteous suit.
Christian Wolff, MA
Psychologist Associate, Inactive
Healthcare Alliance for Regulatory Board Reform (HARBR)
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Christian you mention Warren Foote as the attorney in Oregon responsible for these miscarriages of justice. It is becoming quite clear that each state has specific attorneys within boards who are doing same. Although ostensibly acting as liaison between PHPs and boards it appears these “compliance managers” were intentionally put in place to obstruct justice and protect the racket. They do not represent the interests of the state or medical board but the interests of the PHP. In Massachusetts the Physician Health and Compliance Unit was created outside the “enforcement unit” of the board by claiming they promoted “treatment” not “punishment” and were given the ability to operate independently. They also shoehorned in the ability to act as their own “hearing officers” so they not only present physician health cases to the board and make recommendations but decide what evidence is seen by the board. New Public Records Law has revealed these attorneys not only conceal evidence from the board but make it up. The crooked attorneys within the Massachusetts Board are Deborah Stoller, Tracy Ottina and Robert Harvey. It is important we hold these attorneys fully accountable for their actions which demand disbarment and legal sanctions to the full extent of the law, not just a slap on the wrist. Given the gravity of their actions and how many have been impacted they need to be criminally charged.
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Michael, I agree. NO NUREMBERG DEFENSES! Perhaps we need to make this more clear that all bad actors will be held to accept for their bad behaviors. No “I was just doing me job” business. We have the figurative axe within out reach and it it is good to see, increasingly we are actually picking it up and swinging it. North Carolina Dental Board is one such axe. I do not know if it is officially written into any accessible law, but the whole world pretty much rebuked the Nuremberg defense after what? The trial of Adolf Eichmann in Jerusalem? But these bad actors are like us in a way. WE who have carried out our practices competently, ethically, and in good faith may have heard that other professionals were getting disciplined but we have thought, “It can’t happen to me.” So will the bad actors in say, Oregon or Massachusetts, following action against their counterparts in, say Michigan think, “It can’t happen in OUR state?” WE should have seen the writing on the wall and better prepared our collective defenses. THEY should see the writing on the wall and get their houses clean.
Sigh. Pardon my computer’s auto- typos. I’m just going to repost my above comment.
Michael, I agree. NO NUREMBERG DEFENSES! Perhaps we need to make this more clear that all bad actors will be held to account for their bad behaviors. No, “I was just doing my job” business. We have the figurative axe within out reach and it it is good to see, increasingly, we are actually picking it up and swinging it. North Carolina Dental Board is one such axe. I do not know if it is officially written into any accessible law, but the whole world pretty much rebuked the Nuremberg defense after what? The trial of Adolf Eichmann in Jerusalem? But these bad actors are like us in a way. WE who have carried out our practices competently, ethically, and in good faith may have heard that other professionals were getting disciplined but we have thought, “It can’t happen to me.” So, will the bad actors in say, Oregon or Massachusetts, following action against their counterparts in, say Michigan think, “It can’t happen in OUR state?” WE should have seen the writing on the wall and better prepared our collective defenses. THEY should see the writing on the wall and get their houses clean.
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When the diseased is exposed the rats will start jumping ship.
Let their retirement go down the tube, let them face public humiliation , hold them accountable and not hiding behind “the board ” the office. ” Kudos to Fed case in MI !
Unfortunately there are AMA & ABA members whose honesty and superior abilities at medicine and law go unknown to most. Funny just like the flub ups the pros get little acknowledgement and are lost. You must be aggressive and along go do anything to traverse the obstacles quickly and rise to the top to become the superhumans worthy of notice and big big bucks and top drawer/shelf influence.
Only class action where the lions share gets divvied up among the legal begals and crumbs thrown to litigants who are forced of coerced into signing on to class action law suits instead of opting out and filing their own claims independantly.
But it’s still a stacked deck although the class act ATTORNEY’S will score wins – by a side door as to leave it difficult for others to challenge using the whatever – if precedent set by class action case. Duh,,,durrr – dumb!
This is so awesome and they need to be stopped. They are abusive to us healthcare professionals and have no understanding of addiction or recovery!
Do we have an update on this suit? An outcome?
On Mon, Jul 22, 2019 at 7:38 PM Christian Wolff wrote:
> Do we have an update on this suit? An outcome? > > On Mon, Jul 22, 2019 at 7:24 PM Christian Wolff email@example.com> wrote: > >> Do we have an update on this suit? An outcome? >> >> On Mon, Jul 22, 2019 at 4:44 PM Disrupted Physician > firstname.lastname@example.org> wrote: >> >>> Maureen A Fogarty commented: “This is so awesome and they need to be >>> stopped. They are abusive to us healthcare professionals and have no >>> understanding of addiction or recovery!” >>>
There are three prevalent models that describe the relationship between PHP’s and medical boards. About half of these relationships derive from states contracting with private organizations configured as 501 (c) (3) entities. Because FSPHP will only grant full membership to state PHP’s that are monopoly providers in each respective state, various methods are used under state procurement laws to ensure a monopoly. Interestingly, many of these monopolies are simply unchallenged “traditional” monopolies.
About a quarter of these PHP’s are embedded in state medical societies and vagaries of state law are used to get around contracting and sole source procurement. Usually this model of interaction requires a state agency that acts as an official “interface” or “adapter” between the medical society and the medical board. The financial support of such agencies may derive from large institutional payers, such as malpractice insurers, in a particular state.
Finally, about a quarter of PHP’s are quasi-public agencies that are recognized sub-divisions of state regulatory agencies or medical boards.
The requirement to render “due process” at the PHP level is different in each of the three types of relationships. When states contract with private entities that provide PHP services, it is usually the case that these PHP’s recognize NO DIRECT DUTY of due process. This is the official and publicly announced policy of the FSPHP “flagship”, the Colorado Physician Health Program. Board meetings, official minutes, and the like are protected from public scrutiny. State public meeting and other transparency laws do not apply to such private organizations. Interestingly, board membership at CPHP may overlap with Colorado Medical Board membership, membership in malpractice insurer governance, and even board membership for many of the largest employers of physicians who contract directly with CPHP for the provision of post-employment medical screening of these employed doctors. The federal statutes that are in a position to be routinely violated by the monopoly private contractor model is astonishingly large. Of note, the PHP’s operating in this type of model have historically met with few legal challenges under federal statute.
PHP’s operating as quasi-public agencies or arms of state government would ordinarily be expected to have to render the absolute basics of administrative “due process”: proper notice of a hearing and a reasonably timely hearing. Under this model, physicians typically learn the lesson that “administrative due process” does not guarantee a perfect process or even a good process.
The state medical society/state government “interface” model is the most obscure type of relationship in my view. The Commonwealth of Massachusetts operates in this fashion and I believe that the weaknesses of such a model are very specific to state statute.
My view is that the state contractor “monopoly” model is the most vulnerable to legal challenge. State procurement laws should be examined as potential vulnerabilities as these programs are monopolies and because they tend to rest on a bed of related party transactions that have not been challenged because they have largely gone un-examined.
All these models are vulnerable to challenge under federal statute such as Title I and II of the ADA, Section 504 of the Rehabilitation Act, and HIPAA. Essentially all medical boards that establish these models are susceptible to challenge under the “immunity limitation doctrine” found in N.C. Dental Examiners v. FTC. The practical limitation currently is that any legal team that chooses to employ these federal causes of action will be undertaking a pioneering effort as little or no case law exists that has been applied to PHP’s.
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