APRIL, 2016
Edie Brous
Nurse Attorney
118 East 28th Street
Room 404
New York, NY 10016
Tel. (212) 989-5469
Fax. (646) 349-5355

Web Site:

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“Locked into their anachronistic and discriminatory notions, medical boards improperly and illegally equate certain illnesses with impairment. Board practices are anachronistic because they shun medical epidemiology defining mental illnesses and substance abuse disorders and ignore the infrequency of impairment associated with these diseases. Decisions are discriminatory because current solutions are based on disability. Not only are such decisions morally reprehensible and not responsive to the very real problem of bad doctors, they violate the ADA.”
Coleman, Phyllis and Shellow, Ronald, Restricting Medical Licenses Based On Illness Is Wrong - Reporting Makes It Worse, Journal of Law and Health, Vol 9, Issue 2, 1994-95, pp 273-302

As long ago as the above 1994 article, the authors identified a problem with licensing boards’ inability (or unwillingness) to distinguish between illness and impairment, between illness and incompetence and between illness and unsafe practice. The American with Disabilities Act was enacted in 1990, yet in 2016, Pennsylvania asks this question on a renewal application:

Since your initial application or last renewal, whichever is later, have you engaged in the intemperate or habitual use or abuse of alcohol or narcotics, hallucinogenics or other drugs or substances that may impair judgment or coordination?

No definition is provided for “intemperate” or “habitual” and the board is unwilling to furnish definitions when asked. No distinction is made between legally prescribed medications and illegal drugs. No distinction is made between substances that impair judgment/coordination at all, ever, in every circumstance, and substances that impair judgment/coordination that compromise a person’s ability to safely practice.

Pennsylvania is not alone. Regulators throughout the country continue to exist in an anachronistic world that conflates mental health issues or substance used disorders with moral failings. They continue to misidentify medical problems as conduct. They continue to ignore current, evidence-based recommendations of the neuroscience experts. The American Society of Addiction Medicine (ASAM) defines addiction as a chronic brain disorder. [http://www.nbcnews.com/id/44147493/ns/health-addictions/t/addiction-now-defined-brain-disorder-not-behavior-issue/#.Vxzd6N8TEzF]

We don’t punish or criminalize cancer. We don’t treat insulin shock as a behavioral issue. We treat it as a medical problem. We don’t assume a person with allergies is unable to safely practice. We don’t assume a person with a cardiac condition is lacking in moral character. And we should not have a default position that a person with a mental health issue or substance use disorder is clinically incompetent until proven otherwise when there is zero evidence basis for that position. Mental health issues and substance use disorders are medical conditions; they are not behaviors.

The self-righteous, moralizing and judgmental approach to licensure regulation continues to stigmatize professionals and impede their treatment. It perpetuates misinformation and fails in its mission to protect the public. Questions such as these on applications might very well violate the 5th and 14th Amendments to the US Constitution, as well as the ADA and should be challenged in court. They do not reasonably serve the purposes of statutory provisions (to refuse or discipline a license where the licensee is unable to practice with reasonable skill and safety to patients) and are an unreasonable exercise of the board’s powers. Vague questions such as these are overly subjective and lead to unreliable responses. They are exceedingly intrusive into a person’s health and medical history and not narrowly tailored to serve the state’s interest in protecting the public.

Professional licensing boards should discipline conduct, not illness. Providers should be punished for improper behavior. They should not be punished because they are sick. Our regulators should follow the science and listen to the experts. As professionals we have the obligation to obtain continuing education, maintain competency and update our practices to reflect changes in evidence-based standards. Shouldn’t our licensing boards do the same?
Bar Admissions:
  • New York, New Jersey, Pennsylvania
  • Southern and Eastern Districts New York Federal Courts
  • United States Supreme Court
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Copyright © 2016, Edie Brous, Esq. PC