The state Medical Board has hit pause on a rule that would require doctors and other licensees to report other health care professionals for discrimination, including microaggressions, after an Oregon Medical Association attorney raised concerns.
The board — which licenses the state’s doctors, physician assistants, acupuncturists and podiatric physicians — reviewed the proposed rule earlier this spring as a step toward its approval. The proposed rule is part of a broader effort to address racism in medical settings.
State and federal laws prohibit discrimination, and the state medical board already requires licensees to report any unprofessional or unsafe conduct by other health care professionals for investigation and potential discipline. The proposed medical board rule went further by expanding the list of things that licensees must report, to include discrimination, implicit bias and microaggressions — meaning subtle displays of prejudice that can be intentional or unintentional.
Despite conservative media reports on the proposal, the board received no public comments on the proposed rule that was scheduled for a final vote on July 11. However, the Oregon Medical Association, a professional association for physicians and physician assistants, more quietly weighed in.
In a June 27 email obtained under Oregon Public Records Law, Mark Bonanno, general counsel and vice president of health policy for the Oregon Medical Association, asked board staff to rethink the rule before moving forward with approving it.
“We also believe that rules which could result in a licensee being investigated and disciplined should be clear about the legal standard being applied to their conduct.”
The medical association had received inquiries expressing concerns that the proposed rule was too vague Bonanno wrote, asking the board to extend the public comment period to allow for more deliberation and input “on how to improve its wording to alleviate concerns we are hearing.”
“To be clear, OMA policy supports advocacy that promotes health equity in health care,” Bonanno wrote. “We also believe that rules which could result in a licensee being investigated and disciplined should be clear about the legal standard being applied to their conduct.”
Professionals licensed by the board are required to report suspected unprofessional conduct by others, such as fraud and sexual harassment, within 10 business days.
The proposed rule would expand the board’s definition of unprofessional conduct to include “unfair treatment characterized by implicit and explicit bias, including microaggressions, or indirect or subtle behaviors that reflect negative attitudes or beliefs about a non-majority group.”
Asked about the rule, Elizabeth Ross, board legislative and policy analyst, told The Lund Report in an email that “the proposed rule is not expected to change the way physicians, PAs, or acupuncturists practice medicine in Oregon” because discrimination in medical settings is already prohibited by federal laws and facility policies.
“The OMB does not regulate a licensee’s speech but rather their conduct in the practice of medicine/acupuncture,” she wrote.
In response to the Oregon Medical Association’s concerns, the board agreed in July to delay adopting the final rule to allow more comment, she said. The agency will issue more details and an updated timeline on the rule later, she said.
“Children who are Black are less likely to get adequate pain management after surgery. Now, is this because of the evil pediatricians? We know they are not evil.”
The Oregon Medical Association did not make anyone available for an interview with The Lund Report. But a spokesperson provided a statement stressing the association’s commitment to eliminating discrimination in health care settings.
“From the OMA’s perspective, we clearly support education and improvements in our health care system to effectively reduce health inequities,” reads the statement. “Every patient should have the opportunity to access health care services free from discrimination. We will continue to monitor the development of the proposed rule and offer comments as needed to ensure medical licensing rules are clear and implemented in a fair manner.”
Despite this intent, conservative commentators have made much of the proposed Oregon rule, suggesting it could mean doctors could lose their licenses over comments misinterpreted by patients. Fox News pundit and law professor Jonathan Turley wrote a blog post blasting the proposed rule and calling similar rules around microaggressions “hopelessly vague and highly controversial.”
Defining discrimination
For more than two decades the medical establishment has wrestled with a growing mountain of evidence that racial minorities and other marginalized communities experience worse health outcomes and that biases by health care providers — conscious and unconscious — have contributed to those disparities, including in Oregon.
In 2022, the Federation of State Medical Boards recommended that state boards adopt regulations prohibiting discrimination.
In 2023, the Oregon Medical Board approved a Diversity, Equity, and Inclusion Action Plan. The plan called for clarifying that discrimination in the practice of medicine is unprofessional conduct, which is also covered in the proposed rule.
Ross did not know if other states have adopted similar rules. But she wrote that the board reviewed a 2022 “policy statement” adopted by the Washington Medical Commission. It states that implicit bias and microaggressions are forms of discrimination, which are unprofessional conduct, and can result in sanctions for intentional or reckless behavior.
Michelle van Ryn, a consultant who helps develop training on implicit bias through her Clackamas-based company Diversity Sciences, told The Lund Report that she appreciates the intent behind the proposed Oregon rule but she said that it is “jumping to accountability.”
“And accountability is good,” she said. “But accountability is for learning.”
Van Ryn said that if medical professionals are terrified they will be brought before the board on bias accusations it could mean lost opportunities for them to learn how their behavior is affecting others in ways they might not realize.
She said she’s more interested in the proposed rule’s attempt to address implicit bias, which she said has a real impact on health disparities. For example, she pointed to volumes of research showing that Black patients get less adequate care for pain than their white counterparts.
“Children who are Black are less likely to get adequate pain management after surgery,” she said. “Now, is this because of the evil pediatricians? We know they are not evil.”
She said that unconscious bias comes from people being not “well-wired to interact well with people who are different” from them. However, she said those unconscious biases can be overcome with what she called “mind hacks.” For example, she said that medical professionals might perceive someone as agitated if they are pacing in an ER room when they are in pain. Van Ryn said medical professionals could imagine that patient as a family member and ask themselves how they might behave.
Five states — California, Maryland, Michigan, Minnesota and Washington — have laws requiring at least some health care workers to take implicit bias training. But not Oregon.
Van Ryn said there is a “deep science” that explains implicit biases and the board could have a more effective role in creating standards for anti-bias training. Then, she said, it should create accountability for people who need the training.
“You really need to bring people pretty far along in really understanding how it is even possible that you can be a really good person with really good intentions and still be unintentionally perpetuating harmful outcomes,” she said.