Posts Tagged ‘ADA discrimination MOUD’

Indiana: Discrimination Against Nurses on MOUD

Ukrainian art – Julia Datta

Many medical boards and nursing boards don’t allow their licensees to practice if they are prescribed MOUD (medications for opioid use disorder). It’s something that hasn’t been talked about much. Most of the boards preferred to keep quiet about these decisions, trying to avoid publicity and lawsuits from healthcare professionals who were denied licenses to practice their profession.

As I’ve talked about in other blog posts, things are changing. The Department of Justice has investigated discrimination against people with opioid use disorder who are treated with medications such as methadone or buprenorphine.

In March of this year, the Department of Justice (DOJ) finished investigating Indiana’s state board of nursing, because they have refused to allow nurses on either buprenorphine or methadone to participate in their Nursing Assistance Program.

The medical boards tasked with protecting the public from problematic physicians usually gives the chore of monitoring doctors with mental health and substance use disorders up to an independent organization, usually called Physician Health Programs. Some nursing boards do this monitoring themselves, through some type of nursing assistance program. These programs monitor licensees with substance use disorders through mandating treatment programs, doing random drug screening, and other methods. The licensees who do well in their recovery receive advocacy from the assistance programs and regain their nursing licenses and go back into their professions.

Indiana’s nursing board would not allow nurses on buprenorphine or methadone to participate in their nursing assistance program, leaving these patients with no method to get their licenses re-instated. The treatment providers that the Indiana nursing board contracted with were all abstinence-based, and patients on MOUD couldn’t participate.

The DOJ says this violates those nurses’ civil rights.

Their full report can be read here:  https://www.justice.gov/crt/case-document/file/1492726/download

Released in March of this year, the DOJ decision says, in part, that their conclusions of law are:

“The Nursing Board’s prohibition on ISNAP participants’ use of OUD medication in ISNAP (Indian State Nursing Assistance Program) penalized Complainant for her disability and was not justified by any individualized medical assessment.”

Because the DOJ found that the Indiana Nursing Board violated title II of the ADA, they recommended they immediately do the following items:

“1. Adopt or revise written policies to eliminate the ban on ISNAP participants using medication to treat OUD and to explicitly state that the Nursing Board, and its contracted vendors, may not discriminate against, exclude from participation, or deny the benefits of its services, programs, or activities—including ISNAP—to qualified individuals with disabilities because they have OUD.

 2. Appropriately train and educate all Nursing Board staff and the staff of ISNAP vendors about OUD and the nondiscrimination requirements of Title II of the ADA.

3. Pay compensatory damages to the Complainant and other aggrieved individuals for injuries caused by the Nursing Board’s actions described in this letter.

4. Provide the United States with written status reports delineating all steps taken to comply with these requirements, including the date(s) on which each step was taken, and, where applicable, information sufficient to demonstrate compliance.”

I thought this decision was appropriate, and I applaud the DOJ for finding against the abstinence-only version of treatment offered by the Indiana Board of Nursing.

I had the pleasure of working on the North Carolina Board of Nursing’s Advisory Committee from 2010 until 2013. This committee met twice per year and served to advise the NCBON about various aspects of the Board’s job. Considerable time was spent discussing how board Licensees were doing in the recovery programs that were set up under the Board and how that program was administered.

I’m pleased to say that North Carolina was ahead of the times. As far back as 2008, I remember managing the care of nurses who were my patients, on either methadone or buprenorphine products. The Board allowed them to work and participate in the recovery programs, with only a few added precautions.

The Board required periodic updates be sent from the physician prescribing the methadone or buprenorphine. They wanted information about updates in the treatment plan. They also asked for a standard form to be filled out and faxed back to the NCBON after each visit, stating how the patient was doing in treatment. That was simple enough, and I was happy to advocate for my patients with the NCBON.

I saw some of those patients only for a few years, but others I still see today, after over a decade on MOUD. Those patients have done well in their lives and their recovery, rising to the top of their field. They are the kind of nurses that you’d be relieved to have taking care of a loved one.

The NC BON wasn’t enlightened because of me; they already had progressive attitudes before I served on their advisory committee. It was the work of other doctors and personnel who served before I came on the scene. Whatever the reason, I was pleased and surprised with approach towards MOUD.

Around 2013, the Advisory Committee for the Board of Nursing asked me to do an hour-long presentation on opioid use disorder and its treatment with medications. In 2012, there was an article published [1] that claimed medical professionals shouldn’t be considered for buprenorphine therapy, and naturally they were concerned about this report.  In my presentation to the committee, I included my critique of that article. I felt the author was biased and misrepresented the data found in some of the studies she cited.   I was happy to do this, and it seemed well-received. I was grateful the leaders of the Board of Nursing wanted as much information as possible.

Then in 2019, I experienced the highlight of my medical career. I was asked by the North Carolina Medical Board to come and talk to the full board about the same topic: opioid use disorder and its treatment with medication, and how it compares to the usual abstinence-based treatments that physicians usually receive.

What made it the highlight of my career? For one thing, I had some…how shall we call it…experience with the medical board. They saw me at my lowest point – when my own recovery was new and shaky.

During my own substance use disorder, I’d decided the cause of my substance use was my job. Anyone with my job would use drugs, I reasoned, so if I just quit work, I could stop using the drugs and alcohol that I knew were causing me problems. I quit my job and was dismayed when I still couldn’t control my substance use. Convinced I wouldn’t ever want to practice medicine again, I inactivated my license.

It was an impulsive and foolish decision which I later regretted. But people under the influence don’t always make great decisions.

It wasn’t long into recovery before I saw that my addiction was about more than my job. To be sure, there were certain pressures at work that hadn’t helped any, but there were multiple factors. To re-activate my license, I had to complete a form that asked if I had ever had any issues with substance abuse. I answered honestly, and said I was working with the North Carolina’s Physicians Health Program. According to Board regulations, I had to meet with the board to be granted a Consent Order to get an active license and return to work.

I met with the Board three or four times, and it was always scary as hell. These people had the power to revoke my medical license permanently, although they really had no reason to do so.

Because I was doing well in my recovery, the board members who met with me were pleasant and encouraging. They congratulated me on my recovery and granted a consent order with some restrictions on my license for the first year or so. It wasn’t long before I got a full unrestricted license back.

As nice as they were, I was still overwhelmed with shame and felt like a bad doctor & a bad person. As easy as it is for me – now – to tell patients now that they are a sick person trying to get better and not a bad person trying to be good, it didn’t feel that way to me in early recovery. I still felt much guilt for “allowing” addiction to happen to me.

Then for the medical board to ask me to come back twenty years later, to speak to the board as an expert was overwhelming.

But it was a tough assignment. Physicians in abstinence-based recovery do very well, with 80% abstinence rate at five years. But that’s for all physicians, using a variety of substances. As we know, recovery from opioid use disorder doesn’t always look the same as recovery from other substances. Among physicians in these studies, alcohol was the most used substance, but opioids were in second place.

In my talk, I acknowledged the data showing physicians recover at better rates than the general population with abstinence-based treatments, which may change the decisional balance about using MOUD, particularly if the patient was strongly motivated to have abstinence-based recovery. But I also said medications were the gold standard treatment for opioid use disorder, there was no firm evidence that patients on stable doses are unable to function as physicians, or physician assistants. (The NC Board of Nursing oversees Nurse Practitioners). Patients who want to use MOUD should be allowed to practice in their professions if there are no other safety concerns. If there were specific concerns, the physician could have neuropsychiatric testing for reaction time, dexterity, etc.

I was asked bluntly if I thought the Medical Board could legitimately deny MOUD to one of its licensees seeking recovery. I told them with the data about the increased risk of death for patients denied medication, I didn’t think they could, or should. I said especially if a licensee had a relapse onto opioids after an episode of abstinence-based treatment, methadone or buprenorphine should be presented as an option to the patient, to prevent death.

I said some things that the board probably didn’t want to hear, but I spoke the truth as I knew it, which was what they asked me for.

I was gratified with their response. I think I was one of three speakers, and my understanding was that after my bit, I’d leave, and the next speaker would start. However, the full board called for a break and board members came up to me and thanked me for talking. I was embarrassed by how happy I felt.

At that time, I didn’t know that the law would have considered it a violation of the ADA to deny physicians access to medications for opioid use disorder.

Today, the DOJ appears to have made the decision for all the state licensing boards that to deny licensees the ability to practice is discrimination that can bring legal attention and action onto the boards.

 I think it’s the right decision. In this age of shortages of healthcare personnel, a more flexible approach will allow more recovering people to be able to practice in their profession. It may also reduce deaths from opioid use disorder in this population, as it does for people in general.

  1. Hamza et al., “Buprenorphine Maintenance Therapy in Opioid-addicted Health Care Professionals Returning to Clinical Practice: A Hidden Controversy,” Mayo Clinic Proceedings, 2012 March 87(3): pp. 260-267.