Lawmakers Question Mental Health Disclosure Rules

Kerry Dooley Young

July 02, 2020

Several federal lawmakers on June 30 questioned state policies that require disclosure of mental health treatment as part of medical licensing applications and renewals, citing concerns about creating barriers to psychiatric care for clinicians.

Mental health–related questions on state medical boards' licensing applications are especially worrisome with many clinicians, including ED staff, immersed in the physical and emotional challenges involved in treating waves of people with COVID-19, lawmakers said during a hearing of the House Energy and Commerce Committee's health panel.

"We must consider the mental health of the providers on the front lines of the pandemic," said Rep. Morgan Griffith, a Virginia Republican.

The issue of state medical boards' disclosure rules was not on the official agenda for the House Energy and Commerce health subcommittee's hearing. And there was no discussion of any specific state medical board's regulations. The Energy and Commerce health subcommittee is working on more than 20 bills related to mental health, including measures intended to aid first responders, such as firemen and emergency medical personnel, and students.

This hearing marked an early stage in the process for a planned package of mental health legislation, said Rep. Michael C. Burgess, MD, of Texas, who is the top Republican on the Energy and Commerce health subcommittee. There may be opportunities as this legislation advances to add provisions intended to aid physicians, said Dr. Burgess, who practiced for many years as an ob.gyn. before being elected to Congress.

"We knew that suicide was a problem among our colleagues prior to the onset of this coronavirus epidemic and I know it is more pronounced now," he said.

Dr. Burgess then solicited specific recommendations from the hearing's witnesses on steps needed to help clinicians' mental health.

The first suggestion offered in reply by Jeffrey L. Geller, MD, MPH, appearing in his role as president of the American Psychiatric Association, was that Congress should look for ways to encourage states to alter their licensing procedures.

The hearing comes on the heels of the APA, the American Academy of Family Physicians, and more than 40 other groups having jointly signed a statement calling for changes to disclosure rules about mental health.

"Licensing and credentialing applications by covered entities should only employ narrowly focused questions that address current functional impairment," the statement said. "Additionally, we strongly support The Joint Commission (TJC) statement on Removing Barriers to Mental Health Care for Clinicians and Health Care Staff. TJC 'supports the removal of any barriers that inhibit clinicians and health care staff from accessing mental health care services.' "

Physicians and other clinicians must be able to safely secure treatment for mental or other health issues, just as any other individual," the groups wrote. "A provider's history of mental illness or substance use disorder should not be used as any indication of their current or future ability to practice competently and without impairment."

Also among the signers to this statement was the Federation of State Medical Boards, which has been leading an effort for years to change licensing.

In 2018, the FSMB recommended state medical boards reconsider whether it is necessary to include probing questions about a physician applicant's mental health, addiction, or substance use on applications for medical licensure or their renewal. While the intent of these questions may be to protect patients, these queries can discourage physicians from getting needed help, the FSMB said.

Several states have since revised or considered revising their license applications and renewals. In May 2020, The Joint Commission urged broader adoption of recommendations from the FSMB and the American Medical Association to limit queries about clinicians' mental health to "conditions that currently impair the clinicians' ability to perform their job."

"We strongly encourage organizations to not ask about past history of mental health conditions or treatment," said The Joint Commission, which accredits hospitals, in a statement. "It is critical that we ensure health care workers can feel free to access mental health resources."

Rep. Susan Brooks, an Indiana Republican who is an attorney, suggested there may need to be a broader look at how state officials pose questions about past mental health treatment to people in many professions, including her own.

"It does build on the stigma on accessing services" to know a state or licensing authority may question a professional about receiving treatment for mental health, she said.

Also at the hearing, Rep. Nanette Diaz Barragán, a California Democrat, spoke of her own reaction to seeing a question about mental health treatment while applying for a White House internship. During her college years, Rep. Barragán had to cope with her father's terminal illness.

"I remember thinking to myself: 'Jeez, if I end up seeing a mental health expert maybe one day I couldn't work in government,' " she said.

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