The US Department of Justice has found that the Indiana State Board of Nursing violates the Americans with Disabilities Act by prohibiting nurses who are prescribed medication for opioid use disorder from participating in their Nursing Assistance Program. The rehabilitation and monitoring program is often required for nurses with substance use disorders if they wish to maintain or reinstate their license. The Justice Department ruled that "recovery and monitoring programs must allow individuals to use proven medications that support their recovery, including prescribed medications that treat opioid use disorder." The Nursing Board has been directed to eliminate the ban on program participants using medication to treat OUD and to train all staff and vendors about OUD and the nondiscrimination requirements of the ADA.
March 30, 2022
Indiana State Nursing Assistance Program found to violate ADA
March 09, 2022
New Jersey proposes anti-discrimination rules
Rules proposed for the Division of Consumer Affairs "will clarify and firmly establish that discriminatory conduct, bias-based harassment, and retaliation against individuals who exercise their rights under anti-discrimination laws constitute professional or occupational misconduct that may be grounds for disciplining a professional licensee, including by suspending or revoking a professional license or certificate." The rules would apply to all 51 professions and occupations within the Division, supplementing the anti-discrimination regulations already in place at three of the boards (the Board of Social Work Examiners, the Alcohol and Drug Counselor Committee, and the Board of Psychological Examiners).
February 16, 2022
FSMB tracking legislation to restrict medical board authority
The Federation of State Medical Boards is tracking legislation introduced in fourteen states that would restrict a medical board's authority to discipline doctors for spreading misinformation related to COVID-19. FSMB developed a policy statement that doctors spreading COVID misinformation could face disciplinary action. FSMB maintains that the statement is merely applying COVID-specific language to a rule that has long been in place - doctors who engage in behavior that puts patients at risk can be subject to disciplinary action.
Legislation in Tennessee was directed at the medical board's COVID policy, making it more difficult to investigate complaints about COVID misinformation.
Pending legislation in Florida would ban the medical board from taking disciplinary action against a doctor for what they say unless "direct physical harm" of a patient occurred.
A survey by FSMB in late 2021 indicated that two-thirds of state medical boards had seen an increase in misinformation complaints.
February 09, 2022
UK government to healthcare professionals: "professional responsibility" to get COVID vaccine
The UK's Department of Health and Social Care has written a letter to all unvaccinated NHS healthcare workers informing them of their "professional responsibility" to get the COVID-19 vaccine. Th letter conveys that this professional responsibility is "widely agreed by professional bodies, Colleges, regulators, and others."
The Nursing and Midwifery Council has issued a statement clarifying that they strongly encourage eligible individuals to be vaccinated but that refusal to be vaccinated is not in and of itself a basis for a Fitness to Practice referral.
February 02, 2022
Canada: calls for futher action against COVID misinformation
Experts in Canada are calling for more and stricter actions against healthcare professionals who spread COVID misinformation or disinformation. Ontario's Health minister has noted the "extremely concerning" situation and urged the colleges to crack down. A professor in the Department of Politics at Ryerson University has said, "[We need] the government of Ontario to put in place an accountability framework that’s meaningful, substantial and that’s transparent for the various self-regulating professions in this province." A bioethicist at the University of Toronto has indicated that the argument in favor of freedom of speech "is not relevant" in this context: “There’s a difference between freedom of speech as a citizen and freedom of speech as a profession. Physicians have absolutely a highly elevated ethical responsibility to the community, and the very nature of medicine itself is the platform is evidence-based science and research.”
January 20, 2022
Year-in-Review: 2021 Regulatory News Trends
CLEAR’s Regulatory News blog strives to bring you news and updates about what’s going on in the professional and occupational regulation arena. What were some of the trends we saw in 2021? The following is not a ranking of importance or an exhaustive list, but here are some of the themes we reported on in 2021:
- Disciplining practitioners for COVID mis/disinformation,
- Mobility,
- DEI and discrimination in regulation,
- Reducing barriers to licensure,
- Licensure issues for veterans and military members, and
- Telepractice.
Read the full year-in-review article
CLEAR will be releasing a podcast episode in February to review trends in professional regulation and hear reactions and further examples from international perspectives.
January 12, 2022
California Medical Board seeks discipline reform
The Medical Board of California has asked the legislature to consider changes to disciplinary policies to lower the standard of proof required to prove cases of professional misconduct, applying the preponderance of evidence standard. They also requested an increase in the amount of time before a doctor can petition to reinstate a revoked license. An increase in licensing fees is also sought.
January 06, 2022
Challenges of disciplinary action for COVID misinformation
This article by Health Affairs Forefront discusses the challenges licensing boards may encounter when revoking a licenses for professional misconduct on the basis of spreading COVID-19 misinformation or disinformation. Prior Supreme Court decisions in the US has established that boards have considerable discretion to discipline healthcare licensees for speech made in connection with medical procedures (professional conduct), but disciplinary actions based on public statements not connected with a medical procedure would be subject to First Amendment rights of free speech. The article notes that boards would be able to establish that they have a compelling interest in minimizing the dissemination of medical misinformation by licensed physicians. The challenge the article identifies is in convincing that courts that revocation of the license is the least restrictive means to further that interest. The article concludes that boards may be able to successfully argue cases where physicians "disseminate misinformation with knowledge that it is false or with reckless disregard of whether it is true" and "there is a substantial body of evidence that unambiguously refutes the physician's position."
December 09, 2021
Scope and enforceability of mis/disinformation codes
This article from Lexology discusses the Australian Code of Practice on Disinformation and Misinformation and the European Code of Practice on Disinformation, addressing the significant public policy concern of harmful false digital content. Debate over the scope of the codes focuses on the difference between the intentional spreading of disinformation and the perhaps unintentional spreading of misinformation - whether it was intended to cause harm. The article concludes, "The unsettled nature of these codes’ scope illustrates how challenging the issue is. Careful code review will be vital to ensure that free speech without fear of persecution, privacy and our 'collective sensemaking' in times of crisis are not lost to overregulation."
And listen to CLEAR's webinar recording to consider how these definitions and polices affect Regulation of Off-Duty Conduct and Misinformation by regulated practitioners.
Tennessee medical board removes misinformation policy
In September, the Tennessee Board of Medical Examiners adopted policy stating that "physicians who generate and spread COVID-19 vaccine misinformation are risking disciplinary action by state medical boards." A state Representative sent the Board letters telling them to remove the statement from their website because it should have gone before the rulemaking oversight committee before adoption. The Board has done so, but an attorney for the Board has stated that there was "nothing wrong or erroneous" with the Board adopting the policy. The Board indicated that the policy has not been rescinded.
The Tennessee legislature has also passed legislation requiring any board disciplinary process related to dispensing or prescribing medication for COVID-19 to go through the legislative rulemaking process.
Purchase the CLEAR webinar recording on Regulating COVID-19 Misinformation
