Can PHPs Be Trusted?

Wes Boyd MD posted a provocative piece on the Psychology Today blog. It explored “so why do PHPs send docs they’ve newly diagnosed under medical board order to a couple of places in Kansas, at least one of which features a polygraph expert on staff, and which charges ~ $7500 cash up front – no insurance accepted – for a “voluntary” four day evaluation?

My comment, certain not to win me a coveted “recommended program” status:

“Dr. Boyd’s concerns are indeed appropriate. I fear he understates the severity and extent of the fraud. 

Having spoken with and /or studied hundreds of cases of physicians subjected to compulsory so-called “psychological fitness for duty evaluations” or PFFDEs by PHPs around the country, numerous patterns are prominent. The physician may have been wrongfully ordered by the medical board itself for a PFFDE and prevented from objecting. The PHP may not even be qualified to conduct the PFFDEs – in fact, many are licensed not as legitimate licensed mental health practices but as “educational non-profit corporations.” In fact, despite clearly conducting an indepth psychiatric evaluation and making a psychiatric diagnosis and assessment of impairment, some have actually denied to US DHHS that they conduct such diagnostic assessments, rather calling their assessments “peer review.” These assessments meet none of the requisite criteria as clearly articulated by HCQIA.

And then, still deprived of contesting the findings of the assessment and having in hand a legitimate, contemporaneous comprehensive psychiatric evaluation which disproves these PHP findings, the physician is still denied any opportunity to contest what amounts to an involuntary civil commitment and their independent evaluation is ignored. 

Then, based on this criminal diagnostic fraud and wholesale denial of the medical equivalent of due process, that PHP often “recommends” to the board – that recommendation being a virtual order to comply – that the physician be sent to one of their “preferred evaluation centers” for a four day evaluation. First, there is no model for this evaluation in all of mental health. It’s a contrivance of the PHP franchise. But second, that non-neutral, non-insurance accepting facility, fundamentally contaminated by such a “preferred” relationship, often returns a diagnosis in synch with the referring PHP and may “recommend” the physician be sent to yet another “preferred facility” in the Board – PHP network for extended hospitalization for their newly diagnosed condition. And in this newly described Medical Regulatory Treatment Complex, it’s either comply or a) you get your licensed revoked; and b) you get publicly declared mentally ill, substance-abusing or behaviorally disordered, never to recover your reputation again. The costs to extract oneself from the maw of this grotesque machine are bankrupting and nearly invariably, the legal efforts futile.

Is it any surprise physicians might kill themselves trapped in such a Kafkaesque nightmare? Or might want to conceal any efforts at getting legitimate confidential help for a mental health concern?

Dr. Boyd has previously advocated for a national independent annual audit of all state Physician Health Programs. Both FSPHP and the APA (psychiatry) refuse to examine these concerns or support independent audit. One must certainly ask why. APA’s 2017 position statement on PHPs establishes a new benchmark for institutional moral cowardice.

Absent any oversight or medicolegal responsibility, I believe the time has come to strongly recommend that any physician ordered by a medical board or any other entity having control over their license or credentialing to submit to a PHP evaluation immediately engage knowledgeable counsel to seek an injunction against the board mandating compliance with that order until the legitimacy, integrity and legal rights afforded licensees are clearly and irrefutably established. 

In my opinion, no physician should ever risk their hard-earned careers to such a fundamentally dishonest and sadistically predatory operation.

Kernan Manion MD is the Executive Director of CPR – The Center for Physician Rights “


New piece by Medscape on CPR – The Center for Physician Rights !

Really pleased that Medscape has done an excellent piece on our new CPR initiative. We’ve gotten many comments from physicians who share their own plight. Our Physician Advocacy Study Group which has been meeting for over 5 years had a strong sense that this was the case.

So if you haven’t seen it yet, take a look:

New CPR Center for Physician Rights

And when you do, be sure to visit the comments!

The Looming Fraud Case Against PHPs and Medical Boards

lab fraud $$

I wrote this essay in response to Michael Langan’s piece (reblogged on this site) on the crucial importance of diagnostic accuracy (6/5/2015)

Very pleased to see Michael’s explanation of diagnostic accuracy, especially in his coverage of the dangers of false positives.

While he covered it elsewhere in his blog, it bears highlighting that while a “false positive” in clinical medicine can lead to more refined testing before one begins on a costly treatment regimen, a “false positive” in forensic medicine can lead not only to loss of one’s right to practice but in fact to one’s very freedom. And, since the very test that is yielding the false positive is explicitly known to produce such, the likelihood that more people are going to be falsely deprived of their civil rights and their fundamental liberty is concomitantly higher. PHPs and Medical Boards know this and have been complicit with this scam.

This would be bad enough even if considered alone. But in the white collar licensed professions like medicine, the use of such a test occurs in a setting where the deprivation of the protections afforded by due process is routine. In other words, if the test comes back positive – even though it’s a false positive – you’re guilty until proven innocent. And you’ve got to spend a fortune to prove your innocence while you’re removed from your practice, deprived of making a living, and coerced into a “preferred program” for extended treatment and 5 years of “monitoring” – ironically using the very same test that falsely established your diagnosis! And it will take years to extract yourself from such a bureaucratic entanglement. One thing is certain – you will not come out of this mauling intact. You will be like the increasing numbers of unfortunates who have been set up by a deeply broken judicial system, framed on false evidence, and sent to prison.

Astoundingly, some Physician Health Programs (PHPs and PHSs and congeners) are using an alcohol usage screening test (the EtG amongst others) that they got approved as a LDT – a laboratory developed test (see elsewhere on his blog). That LDT bypassed the FDA process which requires rigorous testing to establish its sensitivity and specificity, in other words to prevent a test from being introduced into the market which yields too many false positives.

But here’s the more amazing thing – SAMHSA, the Substance Abuse and Mental Health Services Administration (a division, I believe, of DHHS), actually issued two explicit alerts in both 2006 and 2012 specifically advising against these tests’ usage in the forensic environment. The PHP enterprise is explicitly a forensic enterprise as, by definition of their role, they are conducting “fitness-for-duty” forensic diagnostic psychiatric evaluations on behalf of a professional (here, the medical) licensing board.

Stop Fraudulent Lab Testing!
Stop Fraudulent Lab Testing!

The conclusions are obvious. PHPs are knowingly using tests which produce false positives to incriminate physicians and compel them to enter into their “preferred network” of costly evaluation and lengthy 3 month treatment programs. Ad they are under state protection in doing so. And the medical licensing boards with which they are affiliated are fully complicit in this crime.

I am convinced this will turn out to be a scandal equivalent in magnitude to the Annie Dookhan falsified evidence case and the forensic fraud committed by the FBI’s hair and fiber analysis forensic lab (uncovered by FBI whistleblower Fred Whitehurst) and the compounding pharmacy contamination scandal.

Do you realize how many physicians (and many other medical professionals’) careers have been sabotaged by this fraud? Do you realize how many other professionals are soon going to be subjected to similar “professionals health / employee assistance” programs testing abuses? And then marched into their licensing boards for a kangaroo court? If physicians and other professionals don’t wake up and demand accountability, especially given the worsening prognosis for being provided due process in responding to such contrived findings, it’s going to be too late. Their careers, as unbelievable as it may seem, will be wiped out.

In a separate essay, I’ll write about the perverse incentives that keep such a system embedded. For now: it feeds the legal “professional license defense” industry; it makes it look like the medical licensing board and their legal department and investigators are “protecting the public;” it let’s PHPs keep their lucrative referral pipeline of falsely diagnosed docs flowing to their “preferred programs,” all of which are FSPHP members; and it creates an exceedingly fine profit potential for the drug testing labs, a select number of which the member PHPs also have “preferred relationships” with. (Some treatment programs actually own their own labs!).

PHPs and the meaning of “assessment”

I was reading Michael Langan’s post PHP Approved Assessments on the conflict of interest that PHPs (Physician Health Programs) maintain in coercively referring to their “preferred centers.” Michael however makes an error in carry forward the party line that PHPs do not conduct (diagnostic) evaluations or provide treatment. While the latter may or may not be true, depending on whether the physician presents voluntarily seeking “services,” the former is most definitely false and little more than the ruse PHPs would have you – and the state – believe.

Clearly it’s a problem when a state-run psychiatric evaluation program (a PHP) operating as a tax exempt non-profit public charity and enjoying state immunity claims that a) it is not conducting diagnostic evaluations but only some ill-defined “assessments” and b) is only making “recommendations” (which the Board invariably acts on to compel compliance – quite the “recommendation!”).

And then, as a result of that “assessment,” the results of which the subject physician is not allowed to see, you are “recommended” to now submit to an “evaluation” at one PHP’s “preferred evaluation centers” out-of-state for a 4 day multi-disciplinary evaluation where the staff roster proudly features a polygraph expert. People – listen up. No legitimate mental health facility in the country has polygraph experts on staff. This would be a profound violation of psychiatric ethics, not to mention the law.

Should not that concern everyone? You’re being sent to a non-mental health facility staffed by a polygraph expert for “evaluation.” Whatever you say can – and will be – used against you. And you will have no right to have your lawyer present. And you will have no appeal. What I can’t understand is not only why are state governments permitting this, but why aren’t all physicians absolutely alarmed about this?! And what in the hell are physicians’ counsel doing while all this is going on? Talk about asleep at the bench! (My personal belief is that every lawyer who has failed in his/her duty to protect their physician client from this gross abuse needs to have their license lifted, be brought before their Ethics Committee and held liable for malpractice.)

But here also we have an evaluation facility which is “preferred” and which is privately owned and which depends for its referrals on the national array of PHPs in every state. Is there perhaps any chance of bias in their returning a diagnosis which supports the initial PHP diagnosis?

What in the hell is a PHP ”assessment?”

Go back for a moment to this idea that a PHP does not conduct diagnostic psychiatric evaluations. This is what they contend, and even deny physicians they evaluate their medical record from that evaluation on the basis that they really didn’t conduct a diagnostic assessment but rather did “peer review” (this despite the fact that the Board may have explicitly ordered them to conduct a “mental evaluation). If they are conducting such “peer review,” then they have violated every one of the criteria of the Health Care Quality Improvement Act (HCQIA U.S.C. 42.11101 et seq.) which governs all peer review.

But we know it’s not peer review as no peer review ever consists of a diagnostic psychiatric evaluation. But perhaps only those familiar with the world of psychiatry and how diagnostic evaluation reports are constructed would know what a diagnostic psychiatric evaluation report actually looks like. And based on records reviewed, that is what they are conducting. But you would never know it because you’re prevented from seeing their record. Convenient, eh?

Look at this another way. The various states’ laws are creatively written to skirt the issue of what actually comprises a PHP “assessment.” So, your medical board receives an anonymous complaint about you seeming woozy or alleging that you smell of alcohol. (It may surprise you to know that in some states, the investigations department can open an investigation without the “board proper” – i.e. the appointed physicians on the board – even knowing.)

They don’t vet the legitimacy of the complaint but rather order you to go to PHP. The only way they can do this is to bypass all laws protecting civil liberties with regard to involuntary mental evaluations. This is de facto a compulsory psychiatric evaluation, ordered by one’s medical board, aimed at assessing whether you have a mental illness or substance abuse problem or some other behavioral disorder that is adversely impacting patient care.

Now, before the wise and compassionate PHP evaluator can send you anywhere, doesn’t it stand to reason that the evaluator has to have sufficient expertise to know what type of specialist to send you to? For one, you don’t send a mentally ill person to an addiction treatment center, and you don’t send an alcoholic or addicted person to a mental hospital. Probably only people in mental health understand this fundamental distinction. So, the PHP evaluator at the very least has to have some knowledge of whether one is dealing with a “mental illness” or a “substance abuse” problem. Even making this preliminary determination constitutes using one’s professional medical knowledge to make a preliminary diagnosis. Clearly, we’re dealing with an agency whose assessment function is at least fundamentally diagnostic.

However, to make an assessment of a condition in either domain, whether mental illness or substance abuse, one must have sufficient knowledge of the range of disorders within those categories. Is it “depression?” “bipolar disorder? “panic disorder?” etc. Likewise with regard to substance abuse – is it alcohol? Narcotics, hallucinogens, amphetamine-like substances? And you have to know what questions to ask. How often, when taken, how long’s this been going on …? Correct me if I’m wrong, but isn’t this what constitutes making a medical diagnosis?

Now, even with that, you still need to know how SEVERE the problem is and whether it is ADVERSELY IMPACTING PATIENT CARE. So the evaluator has to know how to assess that, because you don’t want to cause needless intensive treatment for a problem that can be addressed on an OP basis and conversely you don’t want to jeopardize patient care and the physician’s health for a serious problem that requires intensive in-patient treatment.

So, a PHP evaluator is having to meet face-to-face with a physician and conduct an interview. And then ask the right questions to elicit appropriate information about the condition under question. (This is starting to seem like a diagnostic interview, isn’t it?) And then the evaluator is having to ask specific questions which elicit factual data and symptom data to clarify what is the nature of the condition. Does this not strike one as having the qualities of a diagnostic evaluation? And then the evaluator is having to make a preliminary determination about what the specific or even general nature of the problem is and whether it merits further investigation or even mandatory treatment. And the evaluator then conveys that in a top secret report to someone back at the Board who then issues an order for that person to go to the evaluation or treatment as “recommended” by this PHP. Am I missing something here?

So, what’s this notion that PHPs don’t conduct diagnostic psychiatric assessments? Why does it persist? I believe it persists because that’s the party line from FSPHP. And the reason that’s the party line is likely because alleging that they conduct such a “non-diagnostic assessment” would spare them the assertion that they are conducting diagnostic psychiatric evaluations for which they could be held medico-legally liable. That could be very messy – tort-wise and constitutionally.

And an additional reason is that, by denying that they’re conducting such, they avoid that even messier area of state and federal law having to do with the state being involved in ordering compulsory psychiatric evaluations while not protecting the patient’s civil rights. There is in fact a whole body of law pertaining to protecting a citizen’s rights against involuntary commitment for psychiatric purposes. Issues of involuntary search and seizure, government abuse of psychiatry for other than treatment purposes (e.g. locking up dissidents…), violation of one’s civil rights….

It’s way past the time to pull back the curtain on this powerful state-supported wizard!

If a physician doesn’t have a problem with this arrangement, tell you what … just tell me your name and what state you’re in, and I’ll file an anonymous complaint with your board about you, say, being woozy or that I smelled alcohol in the examining room or that I saw you hug a patient   – I don’t even have to be your patient! And that’ll let you experience for yourself the whole shebang. Should move quickly, but once started, could take a year or two to move you through the system to a point of immobilization. You probably won’t thank me for it, but I can guarantee you this – you’ll come out at least $100k lighter, what with extended evaluation and treatment at “preferred programs,” and then ~ $25k for lawyer fees (sadly, just for them to tell you you have no rights). (That’s not counting lost practice time or endangerment of patient well-being from unwarranted interruption of care.)

And bud, that’s before you even start your 5 year “monitoring program.” Just to ensure that you’re not still a danger.

Please Sign Petition to Audit Corrupt Physician Health Program. Need Oversight, Regulation, and Accountability

I am in full agreement with the initiative to insist that each state auditor conduct a comprehensive performance audit of both its PHP and its medical licensing board. What the auditor found here in NC, recently conducting a survey of all licensing boards, is that the entire licensing board system is dangerously out of control and potentially corrupt, with neither oversight nor accountability.

Disrupted Physician

It is incomprehensible that in an age of accountability and evidence base an organization could have absolute power in the field of medicine.  As the NC Audit showed, these programs have absolutely no checks and balances and that is how they have become corrupt.      What are they trying to hide?
IMG_8564Please Sign Petition to Expose Corruption in the Medical Profession

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Violations of Due Process by NCPHP

The state auditor (NCOSA) issued its report on its more than year long performance audit of NCPHP and found a pattern of systematic violations of due process in its conduct of physician evaluations under the rubric of “peer review.” Further, the auditor noted that there was “the appearance of multiple conflicts of interest” in its referrals to select out-of-state evaluation and treatment programs.

Here is the audit on the NCOSA website: NC Office of the State Auditor

However, of even greater concern was the finding that no entity charged with NCPHP’s legal oversight was actively monitoring its abuses. Both the NCMB (Medical Board) and the NCMS (Medical Society) were specifically charged with overseeing NCPHP and holding it accountable for compliance with appropriate protocol and with state and federal law.