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September 27, 2023

Physician Burnout and Career Fatigue Part III

Burnout and Mental Health Stigma on Physician Licensing, Credentialing, and Privileging

By Sun W. Vega, Daniel Blaney-Koen and Tyler Cowart

Click here for the audio version of this article

Physician wellness and the stigma surrounding mental health are ever-rising concerns among healthcare leaders and proponents for improvement of the national healthcare system. Among the issues confronting the nation is the rapidly declining number of physicians and healthcare workers available to provide necessary services. The COVID-19 pandemic shone a spotlight on the increasing number of physicians and allied health workers leaving their professions or retiring early due to burnout and untreated mental health concerns. Nationally, state medical boards, health systems, and healthcare institutions are moving to change stigmatizing questions on credentialing and privileging applications that may discourage seeking treatment as well as to implement or broaden protections for healthcare workers who seek treatment. The degree of movement made by states and healthcare entities on this subject varies significantly. 

Depression and Burnout

According to statistics published by the Centers for Disease Control and Prevention (CDC), death by suicide is the 11th leading cause of death among Americans. In 2021, 48,183 people died by suicide and an estimated 1.7 million attempted suicide. In comparison to the general population, the prevalence of death by suicide among physicians is 40% higher among male physicians and 130% higher among female physicians. The rate of depression, substance use, and other behavioral health disorders are higher among medical students and female physicians when compared to other professions.

Burnout is often confused with depression because the symptoms may seem the same or overlap. It is classified by the World Health Organization (WHO) as a syndrome resulting from “chronic workplace stress” that impacts physical, mental, and occupational well-being. The key symptoms of exhaustion, cognitive impairment, poor work performance, empathy loss, and social withdrawal may contribute to experiencing depressive symptoms.

The incidence of burnout is higher among those in helping professions and caregivers. Physician burnout reached epic proportions during the COVID-19 public health emergency, as the pandemic intensified the pre-existing risk factors for burnout. Researchers found that the prevalence of burnout among U.S. physicians was highest in 2021, at 62.8%, compared to 38.2% in 2020.

Burnout is a commonly known occupational hazard for physicians. Physicians are trained to tough it out when faced with highly stressful situations. This has created a culture of stoicism that normalizes feelings of distress, which contributes to overlooking the symptoms of burnout and depression. Physicians can misinterpret their depressive symptoms for burnout because they are expected or conditioned to work long hours and, regardless of specialty, face continual burdens and stressors. While certain stressful, high-acuity settings like internal, emergency, and critical care medicine are associated with burnout, it is not limited to one specialty or practice setting.

Mental Health Stigma

The stigma of having a mental health condition and fear of professional consequences prevent physicians from seeking professional support. A Medscape survey published in March 2023 found that 24% of doctors reported experiencing symptoms of clinical depression, 9% have considered attempting suicide, and 40% did not tell anyone about their suicidal thoughts because they either felt they could handle it on their own or were afraid that their medical board, malpractice insurance, or coworkers would find out. Many physicians fear that seeking care will be seen as a sign of weakness, that they will be judged harshly by their colleagues, or that they would have to be treated by a colleague in the community.

Recent public accounts of physicians who have died by suicide highlight these issues. Dr. Lorna Breen, a highly respected emergency medicine physician from New York who died by suicide early during the COVID-19 pandemic, exemplified how essential it is to support physicians and other healthcare professionals in seeking care for burnout. Dr. Scott Jolley, an emergency medicine physician in Utah, similarly did not seek care for his mental well-being, according to his family, until it was too late. Tragically, these issues also affect medical students and resident physicians.

Medical Boards are Changing Licensing Applications to Support Physicians’ Health and Wellness

Death by suicide, burnout, depression, and related problems affect physicians at every stage of their careers. Physicians have higher rates of death by suicide than the general population, according to the American Foundation for Suicide Prevention (ASPF). The ASPF also found that medical residents and students also experience depression at rates greater than the general population. Because they are medical professionals, it seems counter-intuitive that physicians and physicians-in-training would not seek care for an acute condition. While the reasons for not seeking care are multifaceted, the fear of disclosing past treatment or diagnosis of mental health condition is one of the top reasons physicians do not seek care. This includes fear of disclosure to medical licensing boards or employers.

A 2017 study was one of the first to highlight the idea that questions on medical licensing applications “regarding mental health conditions present a barrier to physicians seeking help.” A common element of a question that causes concern among physicians is one that asks whether an applicant ever had a past treatment or a previous diagnosis of a mental health condition or substance use disorder. This type of question is opposed by the Federation of State Medical Boards (FSMB), the American Medical Association (AMA), and the Dr. Lorna Breen Heroes’ Foundation (DLBHF), an organization founded by the sister and brother-in-law of Breen, whose suicide, according to the foundation, occurred following multiple emergency department shifts and constant strain:

“[…when Lorna] became so overworked and despondent that she was unable to move, do you know what she was worried about? Her job. She was worried that she would lose her medical license, or be ostracized by her colleagues, because she was suffering due to her work on the front lines of the COVID-19 crisis. She was afraid to get help, because she was worried it would end the career that she had spent her entire life working for.”

Dr. Breen’s concern is echoed by more than 40% of physicians. To directly address this, the FSMB in 2018 issued a report emphasizing that “The Federation of State Medical Boards does not require organizations to ask about a clinician’s history of mental health conditions or treatment.” The 2018 report cited the fact that “a history of mental illness or substance use does not reliably predict future risk to the public.” The FSMB “urge[d] state medical boards to ‘focus only on current impairment and not on illness, diagnosis, or previous treatment in order to be compliant with the Americans with Disabilities Act.” The FSMB also offered sample language for state medical boards to use in place of questions asking about past diagnosis or treatment: “Are you currently suffering from any condition for which you are not being appropriately treated that impairs your judgment or that would otherwise adversely affect your ability to practice medicine in a competent, ethical, and professional manner? (Yes/No).”

The AMA, in concert with the FSMB and DLBHF, also has adopted policy that “encourages state licensing boards, specialty boards, hospitals and other organizations involved in credentialing and/or privileging to require disclosure of physical or mental health conditions only when a physician is suffering from any condition that currently impairs their judgment or that would otherwise adversely affect their ability to practice medicine in a competent, ethical, and professional manner, or when the physician presents a public health danger.” (Emphasis added.) The AMA, furthermore, adopted the FSMB-recommended language to be the standard for medical boards, specialty boards, hospitals, health systems, and credentialing organizations.

In March 2022, the Dr. Lorna Breen Health Care Provider Protection Act was signed into law by the 117th Congress. This statute directs the Department of Health and Human Services (DHHS) to award funding to direct care entities and professional associations for initiatives that “promote mental health and resiliency among health care providers.” This federal law was supported by entities like the AMA, FSMB, and other nationally renowned healthcare associations. The law focuses on prevention of suicide, identifying resiliency factors, reducing stigma through education and training, and improving outcomes for healthcare professionals that are struggling with behavioral health disorders. The law does not direct medical boards to revise their license applications; however, it encourages that a review take place to evaluate “barriers to seeking and accessing mental health care for health care professionals, which may include consideration of stigma and licensing concerns, and actions taken by State licensing boards.”

Working together, the AMA, FSMB, and DLBHF have urged medical boards, hospitals, and health systems to review their applications. If there are questions about past treatment or diagnosis, the organizations work with the boards on revisions. One recent example of a board taking positive action is Georgia, which previously asked physician license applicants:

During the last 7 years, have you suffered from any physical, psychiatric, or substance use disorder that could impair or require limitations on your functioning as a professional or has resulted in the inability to practice medicine for more than 30 days, or required court-ordered treatment or hospitalization? (If yes, provide treatment history documentation to include diagnosis, treatment regimen, hospitalization, and ongoing treatment/medication to the Board. NOTE: If you are currently enrolled in GAPHP, you may check NO.

Following discussions with the AMA, Medical Association of Georgia, and others, the Georgia Composite Medical Board (GCMB) revised its question to ask:

Are you currently suffering from any condition for which you are not being appropriately treated that impairs your judgment or that would otherwise adversely affect your ability to practice medicine in a competent, ethical, and professional manner?
NOTE: If you are currently enrolled in Georgia PHP, you may answer NO.

“The Board believes this is a step in right direction to address clinician burnout and encourage mental healthcare while still protecting patients from impaired professionals,” said GCMB Chair Matthew Norman, MD. “Applicants should not fear loss of a license or denial of a licensure application for seeking mental health services.”

While there are more than one dozen state medical boards currently working on supportive changes, it is instructive to note three that already have made similar changes: Minnesota, South Dakota, and Oregon. Before recent changes, Minnesota’s licensing application included a requirement for the release of medical records for “applicants who have a medical condition during the last five years which, if untreated, would be likely to impair their ability to practice with reasonable skill and safety must have their treating physician complete this form.” The application now appropriately focuses on current impairment and asks:

Do you currently have any condition that is not being appropriately treated which is likely to impair or adversely affect your ability to practice medicine with reasonable skill and safety in a competent, ethical, and professional manner?

The change was made after an advocacy push from the Minnesota Medical Association and medical students in the state.

“We were contributing to physicians either not self-reporting illnesses or not seeking treatment, and that wasn’t the goal,” said Kathryn D. Lombardo, MD, a psychiatrist with Rochester-based Olmsted Medical Center and former Minnesota Medical Board president. “If we have clinicians that aren’t seeking care for themselves, they may not be able to provide good care to patients, and that potentially can contribute to unsafe care for patients.”

When changes are made, it is important for the state medical board to also communicate and publicize the changes, advises Barb Smith, executive director of the South Dakota State Medical Association. Smith says that the board in her state made positive changes in 2020, but few people knew about it. Smith is working with the board to help ensure all physicians know that the license application no longer contains stigmatizing questions about mental health and wellness.

The Oregon Medical Board not only is communicating its changes, but it also is telling licensees, “The Oregon Medical Board recognizes that licensees encounter personal health conditions, including mental health and substance use disorders, just as their patients and fellow health care providers do.” Previously, Oregon asked questions about past treatment for mental illness and substance use disorders, but after working with the state medical association and others, removed those questions.

What’s next? In 2023, several dozen medical boards, hospitals, and health systems already have taken action based on AMA, FSMB, and DLBHF recommendations, but there remain more than 25 state medical boards yet to make changes—or to make changes final.

States that have made recommended changes include: California, Connecticut, Georgia, Hawaii, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New York, North Carolina, North Dakota, Oregon, Texas, Utah, Vermont, and Washington. Meanwhile, Arizona, Colorado, Maryland, New Hampshire, New Mexico, Ohio, Oklahoma, South Carolina South Dakota, and Virginia are among the states now working toward making changes.

“These changes can take hours to days to make, not weeks or months,” said J. Corey Feist, president and co-founder of the DLBHF. “The low-effort changes have an incredibly high impact.”

Efforts are Underway to Encourage Health Systems to Revise Their Credentialing and Privileging Protocols

Three of the top barriers that inhibit physicians and other healthcare professionals from accessing mental health treatment are fear of disclosure to licensing boards and employers, interprofessional judgment, and stigma. While medical boards are considering changes to their licensing applications, hospitals and health systems are increasingly heeding the call to eliminate intrusive mental health and substance abuse questions on credentialing applications, attestations, and committee review forms.

Some healthcare organizations are further along than others. Since the onset of the COVID-19 pandemic, these institutions have been severely impacted by employee burnout and mental health. These entities were squarely, and still are, in the middle of this new emerging workforce crisis. But change can be slow, and understandably so. It is a heavy lift to align large, potentially multi-state, institutions with complex committee structures and engage stakeholders from top to bottom.

The State of Virginia is an example where advocacy groups and professional associations were at the forefront of advocating for legislation to expand civil immunity and address “career fatigue and wellness” among healthcare practitioners before COVID-19 struck. The state passed and signed into law what is now known as the SafeHaven program. This program differs from a practitioner monitoring program because it provides a confidential and supportive avenue for “healthcare providers to seek early intervention and professional support” with “no on-going monitoring.” It was not until March 2023 that the State of Virginia passed the law that directs regulatory and licensing boards to change language “related to mental health conditions and impairment” in applications. The law further calls for the removal of two questions from applications: (1) Do you have any reason to believe that you would pose a risk to the safety or well-being of your patients or clients? and (2) Are you able to perform the essential functions of a practitioner in your area of practice with or without reasonable accommodation? The law does not instruct on how to change the language or what type questions should not be asked.

The law recently passed by Virginia was championed by multiple stakeholders advocating for healthcare providers, including the Medical Society of Virginia (MSV) and Virginia Hospital & Healthcare Association (VHHA). VHHA recognized a need to develop strategies to address burnout and systematic issues that hinder healthcare workforce access to mental health treatment, as existing structures still prevent practitioners from accessing the SafeHaven program and its resources.

The VHHA and the Virginia Board of Medicine sought technical assistance from the AMA and are considering changes to the medical board licensing application. In parallel, the VHHA and AMA are working with hospitals to revise their credentialing applications. Their work is guided by the work of the DLBHF.

When asked about any speedbumps while working on the revised medical board application, VHHA Executive Director, Abraham Segres, points out that “the devil is in the details,” and it is easy to become frustrated by the number of meetings it takes. He explains that multiple regulatory bodies or agencies may have contributed to the creation of a singular application, so having the right people at the table is important. He points out that a question on an application may have existed for years, and often, there was a reason that question was added. The group is now evaluating each question to assess its risks and benefits. Segres emphasizes that getting to a common understanding is critical to making substantive change, and the Virginia Board of Medicine, like most other medical boards, has been a strong partner to understand the importance of supporting physicians’ health and wellness.

The work that the VHHA and AMA have embarked on with the hospital systems is no less challenging. When asked about who should be at the table, Segres identified that the role of the chief medical officer has been a great contributor to making headway. He recognizes that “not all CMOs are created equal, and their functions vary,” but having the “voice of the physician leader” has been a key factor to their progress so far. Segres identified two things that may hamper progress: (1) committee structure and (2) consolidated health systems. Hospitals with complex committee structures and/or infrequent review meetings (e.g., quarterly, semi-annual) take additional time to bring about changes. The same may be true for health systems with corporate offices outside of the state and committee review structures at a national scale. It takes time and patience to get buy-in at the national level. When asked why all this effort is worth it, Segres replied that the VHHA and its members committed to this change because they wanted to improve quality and safety. And, Segres stated, it is these “shared goals that provided a nice foundation” to revising hospital credentialing protocol.

To underscore his points, Segres highlighted that there are several dozen Virginia hospitals and health systems that have made changes to their applications based on the recommendations from VHHA, the Medical Society of Virginia, DLBHF, FSMB, and AMA.

“There’s a lot of momentum across the Commonwealth to not only make these changes, but to clearly communicate and demonstrate to physicians that seeking care for wellness is supported by hospitals and health systems,” said Segres. “We want the Commonwealth to be the best state in the nation to practice medicine, and we know that having healthy physicians who aren’t afraid to seek care is an essential part of that.”

Stark Law & AKS Relief, and the Role of Physician Health Programs

With the increasing rates of burnout and concerns of stigma surrounding mental health and substance use treatment, physicians need safe options to receive necessary treatment in lieu of disciplinary action from their medical staff or state licensing board.

One angle of relief for hospitals and healthcare entities to address physician burnout and resiliency is through a new Stark Law exception and AKS Safe Harbor addressing physician wellness programs. These flexibilities were recently passed in Section 4126 of the Consolidated Appropriations Act (CAA) of 2023. There is no limit on the dollar value of the program so long as the program’s primary purpose is to “prevent suicide, improve mental health and resiliency, or provide training in appropriate strategies to promote mental health and resiliency”; the program furnishes benefits such as mental health services, a suicide prevention program, or a substance use disorder prevention program; and the program is set out in a written policy adopted by the governing body. These flexibilities should offer health systems and medical staffs the ability to provide various forms of nonmonetary compensation, and, importantly, critical wellness support without the fear of regulatory enforcement. Organizations may be able to take advantage of this regulatory relief to provide preventative services that may mitigate physicians’ escalation to impairment or disciplinary action. Time will tell whether these programs become recognized by state licensing boards and what confidentiality provisions are at play.

Physician Health Programs (PHPs) were created for the purpose of providing a safe therapeutic alternative to discipline. PHPs are defined by the Federation of State Physician Health Programs (FSPHP) as “A confidential resource for physicians, other licensed healthcare professionals, or those in training suffering from addictive, psychiatric, medical, behavioral, or other potentially impairing conditions.” Creation of these programs dates back to 1974 when the AMA acknowledged physician impairment due to alcoholism and drug dependence. With support and guidance from the AMA and the FSMB, all but three medical societies in the U.S. had authorized or implemented a PHP by 1980. Today, PHPs are still active in 47 states and the District of Columbia, with some established as independent non-profit entities and some affiliated with their respective state medical association, and have proven highly successful. According to the FSPHP, long-term studies report recovery rates of 70%–90% for physicians with substance use disorders monitored by PHPs, as well as a lower risk of malpractice claims after successful completion. In addition to early detection and treatment of potentially impairing conditions, when advising on PHP structure, the FSPHP strongly opposes discrimination against physicians at any time, including during licensing or credentialing, supports the use of PHP services in lieu of disciplinary action whenever possible, and holds privacy and confidentiality of a physician’s history and treatment in the highest regard. Without the assurance of privacy and confidentiality, physicians are disincentivized to receive treatment and may remain caught in the same cycle of fear and apprehension, as referenced throughout this article series, and not seek the help they need.

A key concept of PHPs is understanding what is considered a “potentially impairing condition”—particularly, the difference between an “illness” and an “impairment.” Upon first read, these terms may seem subjective and/or open to interpretation. Fortunately, the FSPHP maintains a Public Policy Statement, originally issued in 2008 and amended in 2022, that addresses the difference and provides a framework for PHPs and state boards to consider when structuring the programs. The FSPHP Policy Statement defines physician impairment as “the inability to practice medicine with reasonable skill and safety due to a health condition,” and underscores the fact that “While impairment, by definition, implies the presence of illness, the presence of illness does not imply impairment,” which is an important distinction that all state licensing boards should rely upon when contemplating the impact of physician disciplinary standards.

Despite this guidance from the AMA and FSPHP, some regulatory agencies continue to equate “illness” with “impairment,” which is a disservice to the profession. While an illness may turn into an impairment, an illness upon initial or early presentation is not necessarily an impairment, nor is there a guarantee that it will transition into an impairment. Further, in those jurisdictions that do not draw a distinction between the terms “illness” and “impairment,” physicians may be told by their medical staffs or state licensing boards that they are no longer able to adequately provide services to their patients.

Regardless, the best time to receive treatment through a PHP is before an illness—such as addiction—turns into an impairment, particularly in those states that recognize a difference in the terms. The benefits of early detection and treatment underscore the power of a PHP with physician privacy at the forefront.

One example of successful PHP incorporation with the state licensing board can be found in Massachusetts. Regulations governing the practice of medicine in the state include a reporting exemption for reports of drug or alcohol misuse when four requirements are met: 1) There is a “reasonable basis to believe” the physician is or has been impaired, 2) the physician has not violated any statute or regulation, 3) the impairment has not occurred in the workplace or involved an allegation of patient harm, and 4) “the physician is currently in compliance with a drug or alcohol program…and the health care provider obtains direct confirmation from such…program…within 30 days of acquiring the ‘reasonable basis to believe’…that the physician is in compliance with such program” (emphasis added). Eligible programs are those approved by the Board of Registration in Medicine, wherein the enrolled physician agrees to confidentially disclose mental health information and details of substance abuse, and provides consent for the program to notify a specified mandated reporter, e.g., hospital or employer, that the physician is participating in the program (to the extent the reporter needs such confirmation). The criteria in the Code of Massachusetts Regulations, § 2.07, exempt mandatory physician reporting to the Board of Registration in Medicine for misconduct/unprofessionalism of a fellow physician. As detailed in § 2.07, mandated reporters are exempt from reporting when the subject physician is in compliance with the requirements of, or has completed, an approved drug or alcohol program.


Anecdotally, as evidenced by increased state amendments to licensing board questionnaires and support of PHPs, it appears that renewed focus on physician burnout and mental health is driving necessary, systemic changes that humanize physicians and reduce longstanding stigmas around seeking mental health treatment. Addressing burnout, access to mental health treatment, and our declining healthcare workforce is a multifaceted concern that demands a comprehensive approach, and no one solution fits all. It will continue to require leadership from all levels, including state representatives, healthcare associations, and grassroots advocacy groups, to prevent physician and healthcare worker burnout by protecting the right to confidentially access mental health treatment. 

    Sun W. Vega

    TeamBuilders Behavioral Health, Santa Fe, NM

    Sun W. Vega, JD, MBA, is chief operations officer and in-house counsel for TeamBuilders Behavioral Health, a New Mexico community-based mental health organization. She has nearly 20 years of experience working in health and human services. She specializes in business operations including fiscal management, contract monitoring, risk/compliance management, human resources, program development, and implementation of technology systems. Vega is chair of the Mental Health & Substance Use Disorders Interest Group of the ABA Health Law Section, chair of the Health Law Section of the NM State Bar Association, and sits on the board of directors for the NM Behavioral Health Providers Association. She may be reached at [email protected].

    Tyler Cowart

    Boston Scientific, Costa Mesa, CA

    Tyler Cowart is sr. legal counsel at Boston Scientific, where he advises sales, marketing, clinical, and medical education partners on privacy regulations, digital health initiatives, and fraud, waste, and abuse matters, including policy drafting and interpretation, transactional review and negotiation, and compliance program guidance, particularly related to interactions with healthcare providers. He is chair of the ABA Health Law Section’s Physicians Issues Interest Group and is an adjunct professor of healthcare laws and regulations at the Mitchell Hamline School of Law in St. Paul, MN. He can be reached at [email protected].

    Daniel Blaney-Koen

    American Medical Association, Chicago, IL

    Daniel Blaney-Koen, JD, is a senior attorney with the American Medical Association Advocacy Resource Center (ARC), focusing on state legislation and policy concerning the nation’s drug overdose epidemic, with particular emphasis on overdose prevention and treatment, treatment for patients with pain, and broad harm reduction efforts. Blaney-Koen also works on issues to support physicians and other healthcare professionals seeking care for mental health and wellness concerns, and he covers other pharmaceutical issues and related insurance market reforms. He can be reached at [email protected]

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