This symposium is designed to review several practical forensic topics within addiction psychiatry. Mr. Gaughen provided the attorney's perspective. Dr. Hedberg considered private disability insurance for addiction from the physician's perspective. Dr. Westreich addressed the Americans with Disabilities Act (ADA) as related to addiction, as well as the legal aspects of drug testing, Medical Review Officer (MRO), employment, and interactions with State Medical Boards. Dr. Satel focused on the philosophy and practicalities of coercion in the treatment of addiction.

Symposium Chair: Laurence M. Westreich, MD, New York University, New York, NY

Private Disability Insurance: Addiction Issues

Mr. Gaughen: A frequently heard question is "I paid my premiums for years…why won’t they pay?" There has been a dramatic change in substance abuse disability claims processing and payment in recent years because the loss ratio has worsened. Ten years ago, insurance companies rolled with it, but now there are difficulties with disability coverage. No longer is a disabled professional going to have disability benefits for the rest of his life without a major fight early and more along the way. In this presentation I will share my job as an attorney for the disabled professional. The job is to get the benefits, help keep the benefits, and work with the person to pave the way for either continued benefits or negotiate a lump sum settlement with the insurance company.

It is important to remember the following characteristics of all disability policies:

• The four corners of the contract define the policy; the policy is nothing more or less than a contract with the insurance company.
• Only the contract language is enforceable.
• Contract law applies.
• Ambiguities are reconciled in favor of the insured.
• Breach-of-contract remedies are available.
• Extra-contractual remedies are available (e.g., penalties and attorney’s fees).
• Statutory remedies are available.

There are several types of disability policies:

• Group policy—procedures for filing a claim or contesting a claim are governed by a federal statute
• Individual policy—regular contractual law applies
• Business overhead/interruption policy—continues to pay bills while disabled
• Own occupation vs. any occupation policies—insurance company insures you for your "own occupation" versus any occupation.

ERISA (Employee Retirement Income Security Act) applies to group policies. There are tax considerations. If one has a group policy governed by ERISA, and the group pays the premium, payments from the policy are taxable as income. If it is an individual policy, disability benefits are not taxable. It is always best to have an individual policy.

If you have an older policy, it is most likely much better so keep it! Now, there is no coverage for chemical dependency/addiction. If there is coverage available, it will most likely be limited to 12-24 months. When looking for a policy, shop around because policies are

very different. Make certain that you check coverage and exclusions. The reputation of the insurance company is very important; as a general rule, avoid the big carriers. Do not rely on your insurance agent for specification of coverage or for claim assistance. Remember, the agent’s job is to sell insurance.

Types of coverage available in disability policies:

• Total disability
• Residual (partial) disability—i.e., if you have to work less than you worked previously
• Transitional disability—some support to get individual back into practice
• Rehabilitation benefit—sometimes includes support to train in another area
• Premium waiver benefit—while a claim is ongoing, premiums are temporarily suspended
• Other benefits:

• COLA (Cost of Living Adjustment)

• GPI (inflation factor)

• SIS (social security)

Disability policies contain the following elements that define what is not covered:

• Application issues (If you misstate or withhold information on the application).
• Application misrepresentation—Check the date of insurance application and the date of issuance of the policy. Most policies have an incontestability clause—if something is found to be inaccurate or withheld more than two years after policy issuance, it cannot be used against the insured.
• Elimination Period (waiting period)—no benefits, but premium is waived
• Pre-existing conditions provisions are highly technical in this area
• Exclusions—as important as coverage; insurance companies will list chemical dependency/addiction in this section
• Limitations on policy defenses
• The state in which the policy is issued controls the law applied to the policy.

Dr. Hedberg addressed issues in evaluation and assessment in determining eligibility and coverage. (Remember, medical records (or you) may end up in court.) For physicians, there is a documentation dilemma. Records serve multiple purposes:

1. Making diagnoses—make certain that you document and adhere strictly to DSM-IV criteria
1. Obtaining health insurance benefits
2. Medical licensure issues (loss of license)—The dilemma here is that for insurance purposes, the situation needs to be documented as really, really bad but for licensure purposes, it needs to be minimized and documented that the patient deserves having his/her license restored. Pay attention to what is included in the charts.
3. Obtaining disability insurance benefits
4. Communicating clinically relevant information

There are different points at which one may become involved with a patient that has a claim. Your documents are going to be read by someone in the insurance industry who is reluctant to provide benefits. Assessments occur at various stages:

1. Admission: This is a document that the insurance company will have for their benefit. Progress notes build a case for why disability benefits are needed. Be certain to document additional diagnoses with specific criteria. During assessment, make diagnosis at the current time; base it on recent history. Past history is not clinically relevant and could lead to "preexisting condition" denial of coverage
2. At discharge: Need to address assignment of return-to-work classifications (total disability, partial disability, needs a transition phase).
3. At request of patient’s attorney: This is privileged information, called "attorney work product." Document why the person should be reinstated, and preparation for litigation.
4. At the request of the patient: Proper response is "Have your attorney call me!"

The goal of the assessment is to make the diagnosis. The insurance company wants to see only one diagnosis—chemical dependency. The insurance company takes the point of view that addiction is totally treatable and everyone should be able to recover and at some point will not be disabled at all.

The insurance company says the patient has a choice—they choose not to go back to work. Health professionals are held to a higher standard; they are treated like others in public safety-sensitive positions such as airline pilots. The Board of Medicine is concerned about public safety; for psychiatrists there is concern about patients and public safety. For the insurer, they want to determine ability to perform any duties—is the patient physically/cognitively able to work? If so, the insurer says they should be at work. Insurance companies say they do not insure "for the risk of relapse." Lack of medical or DEA license is not a disability as perceived by the insurers. The insurer will say that they support the patient's choice not to work, but do not consider this choice a medical disability deserving of disability insurance payments."

Programs treating health professionals must determine when someone should return to work. This is divided into categories as follows.

Category I – Return Now. This means that the person accepts/understands the disease, is bonded with AA/NA, and other psychiatric disorders are in remission. There are healthy family relationships, a balanced lifestyle, and a long-term treatment plan. The person is committed to a five-year monitoring contract. For an anesthesiologist, this would mean that he/she is confident to be in the operating room (OR) and not relapse.

Category II – Reassess in one to two years. This means that the person is not confident that he/she can be in their work environment and not relapse; some denial and recovery skills need improving.

Category III – Never Return. This means that the person has a malignant addiction history; there is a lack of confidence to remain abstinent in the work environment; there is relapse despite adequate treatment; significant psychopathology (Axis II) exists; and there is a demonstrated inability to follow the treatment plan. Progress notes should carefully document this category.

When you file for disability insurance, there are certain steps/actions that will follow. First of all, know that you will be challenged. The insurance company will want to stop payment. The steps include:

• Forms—which can be viewed as a form of harassment. Insurers are looking to create frustration and are looking for errors: specific vs. vague information that they can use to their advantage.
• Pay "under reservation of rights"—this means they are not bound to anything; they can decide at any time not to pay; they can ask for money back that they have previously paid out.
• Request for records
• Denial of claim
• More forms
• Paper review by internal medical department
• Denial of claim
• Phone calls, more questions: If you get a call from an insurance company, ask them to put their questions in writing. Do not talk with them on the phone. You need to have the chart with you.
• Denial of claim
• Independent medical examination. This is done by someone employed by the insurance company and is usually a forensic evaluation.
• Denial of claim

When filing the claim, make certain you are aware of elimination periods. File early, as soon as possible, even before the end of the elimination period. The physician is primarily responsible for helping the attorney avoid pitfalls. Remember that the insurance agent is not necessarily your friend. As the claim is being processed, there will be continuing filing requirements that should be jointly responded to by the physician, claimant, and attorney in a team effort. The insurer will continue to challenge information. Issues will arise regarding choice vs. disability. Return-to-work issues will also bring continuing filing requirements, with the goal of wearing you down. Insurance companies tend to back off on patients with multiple diagnoses. If the determination is that the patient is never able to return to work, the attack by the insurance company will be stronger.

If all else fails, the insurer will try to make a lump sum settlement. The benefits of lump sum settling are not necessarily that great. The calculation of amounts is probably not going to be beneficial to the patient. The patient is more likely to be better off by keeping the benefits and living on the disability income.

As a last resort, the disabled person may turn to litigating the claim. This is not in the best interests of the client. Juries have little sympathy for health care professionals who steal drugs from the workplace.

My advice is not to sue with an eye toward settlement; it doesn’t happen as a matter of course.

In summary, from a disability insurance standpoint, the insurance company is not the friend of the patient. Disability insurance is very technical—the insured needs to take it seriously and investigate it in depth.

It is a challenge for clinicians to think legally. It is important to think this way in initial patient evaluations. In conducting a forensic disability assessment, clinicians have tremendous power in helping patients.

According to the 1997 National Household Survey on Drug and Alcohol Use, current illicit drug use and heavy alcohol use is prevalent in the U.S. workforce. In 1995, the NIH estimated that $27 billion was lost due to alcohol alone. A worksite study, funded by the Robert Wood Johnson Foundation and the NIAAA in seven corporations at 114 worksites with 14,000 employees, showed the following performance problems: absenteeism, late arrival, poor quality work, doing less work, and arguments with co-workers. Approximately 60% of the work performance problems came from non-dependent drinkers compared with 41% from dependent drinkers.

Drug testing is increasingly being used in the workplace. There are six major types of drug testing:

1. Pre-employment testing
1. Reasonable cause testing
2. Random testing
3. Post-accident testing
4. Periodic testing
5. Rehabilitation testing

The period of time that certain drugs are detectable depends on the type of drug and the amount. Whether a test is positive or negative is also influenced by the way the particular laboratory sets its limits. In 1986, a Presidential Executive Order required the development of guidelines for workplace testing. Some safety sensitive industries, including transportation and national security, have mandated testing. However, testing is also prevalent in non-regulated industry. As a result a new occupation, that of Medical Review Officer (MRO), has emerged. The role of the MRO is to enforce chain-of-custody requirements and verify results of testing for the five drugs required by HHS for testing: cocaine, marijuana, PCP, amphetamines, and opiates. The chain of custody is used to establish that this is the correct specimen the MRO is reviewing.

In the case of Schmidt vs. Safeway, Inc. (*864 F. Supp. 991), a truck driver was fired for an apparent alcohol problem after he returned from a leave of absence to obtain medical treatment as a "reasonable accommodation." The company’s MRO stated that the plaintiff "should be an excellent employee after he finishes treatment." The judge gave him his job back stating that even the company’s MRO supported his return to work.

It is well known that health professionals exhibit many predisposing factors for addiction, especially to alcohol and prescription drugs. These predisposing factors include stress, access to drugs, professional stature, family history, and lack of addiction education. It is often difficult to make the diagnosis of substance dependence in health professionals due to denial, active avoidance of detection, plausible rationalizations, difficulty evaluating job performance, and the social acceptability of alcohol use. Barriers to treatment of the addicted professional include denial of addiction, enabling by staff, reluctance to "harm" career, lack of a clear policy, and legal threats.

Physicians who work with state medical boards and physician health programs must consider the implications of dual agency

• being an agent for the patient and for the state medical board or physician health program;
• countertransference issues;
• intimidation by state medical board and physician health programs;
• local politics; and
• treatment.

As in general forensic matters, the psychiatrist cannot treat someone who has come to the office for a forensic evaluation as confidentiality is breached when the evaluation is being conducted. A general forensic evaluation for the state medical board should include the following elements:

• "subject’s account of the allegations"
• statement of non-confidentiality
• collateral informants
• collateral documents
• laboratory testing
• physical examination
• summary

It is important that all addiction psychiatrists are familiar with the Americans with Disabilities Act (ADA). The ADA is relevant to any patient who has a job. Alcoholism is covered if there is no direct threat to others and if no specific workplace rules are broken. ADA does NOT supercede stricter state protections, the Drug Free Workplace Act, or statues established by the Department of Transportation, Department of Defense or the Nuclear Regulatory Commission (42 U.S.C. 12111). According to 42 U.S.C. § 104 12114, "current" drug use is not covered; "illegal drug use" includes prescription medications not properly prescribed. Coverage is provided for "an individual who has completed a supervised drug rehabilitation program and is no longer engaging in the use of illegal drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use." Reasonable accommodations for addiction include a modified schedule to allow daily methadone pick-up, job restructuring to relieve employee of marginal tasks that may compromise recovery, and temporary reassignment to a vacant non-safety sensitive position while he/she completes treatment.

References:

1. "Alcohol and Work,", In Issacs, SL, Knickman, JR, eds. To Improve Health and Health Care 1999-1998: The Robert Wood Johnson Anthology. Jossey Bass; 1998.
2. ASAM. Principles of Addiction Medicine, Second Edition. Annapolis Junction, Maryland; 1998: 1259.
3. Hughes PH, Brandenburg N, Baldwin DC, et. al. Prevalence of substance abuse among UD physicians. JAMA. 1992;267:2333-39.
4. Hughes PH, Conrad SE, Baldwin DC, et. al. Resident physician substance abuse in the United States. JAMA. 1991;265:2069-73.
5. National Household Survey on Drug and Alcohol Use, 1997.
6. Weber EM. Employing and Accommodating. Washington, DC: Legal Action Center; 2000:4.

In addiction treatment, coercion is defined as forcing a choice, i.e., stop using or lose the job, stop or go to jail, or lose benefits. Basically this is a choice to alter behavior or risk consequences.

When talking with those involved in the criminal justice systems, drug-free periods are often related to being on probation and subject to urine screening. Thus, effective leverage includes the threat of negative consequences or positive rewards, which drug treatment systems are unable to use. The dropout rate is very high in voluntary treatment programs (often referred to as retention deficit disorder).

The recent Drug Abuse Treatment Outcome Study (DATOS) data shows that in outpatient therapy after one year, one in 20 patients stays in treatment. This is a severe limitation to voluntary treatment. The criminal justice system has the secret—why those going into treatment in a nonvoluntary way do as well or better than those in voluntary treatment. They stay longer (in involuntary treatment). It is well established that length of stay and outcome are well correlated.

From a clinical standpoint, it is very helpful if an external agency (i.e., the probation/parole department) makes the rules. The clinician can then concentrate the focus more on the patient’s ability to conform to the rules of the external agents.

Drug courts were set up in 1989 in Miami to divert non-violent addict offenders to treatment programs and to release jail space. The judge closely supervises those selected. Sanctions exist, including graduated sanctions as reactions to an infraction. The sanctions are enforced immediately upon an infraction; they are not particularly severe but support behavioral modification.

The average retention rates in drug court treatment (across a variety of modalities) is 50-70% throughout the year. This is based primarily on the knowledge that something will happen if the offender drops out of treatment. Recidivism and re-arrest rates are lower. Mandated treatment often results in treatment compliance, and over time, treatment is accepted and the values are internalized. Offenders cannot balk under drug court directives. Thus, treatment outcomes are better because the offenders stay longer.

The drug court experience challenges two myths about addiction:

1. The person MUST want to get better.
2. The person MUST hit bottom.

In reality, they don’t have to hit bottom, and they don’t have to want to get better.

Other system leverages that can impact patients are employee assistance programs (EAPs) and welfare system sanctions requiring treatment before getting a work assignment with the risk of losing benefits.

The final lesson of drug courts, and the implicit coercion, is that it highlights the false dichotomy between moral (personal responsibility) and medical (no fault) treatment models. Coercion shows that the two models work best together. Models used in the criminal justice system may illuminate other areas of treatment.