The Oregon Medical Board has scaled back a proposed rule intended to address racial and other discrimination in medical settings after an earlier version sparked complaints.
The board — which licenses the state’s doctors, physician assistants, acupuncturists and podiatric physicians — proposed the now-revised rule earlier this spring and included language that indicated providers could face discipline for microaggressions— meaning subtle displays of prejudice that can be intentional or unintentional.
Part of a national push to confront health care discrimination, the rule seemed headed for approval until providers and an attorney for the Oregon Medical Association raised concerns that the far-reaching measure could turn misunderstandings into disciplinary proceedings, public records show.
Since then the medical board has revised the rule and reissued it for public comment. The language that had sparked concern for some providers is gone. It expanded 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.”
The updated version defines discrimination as the “practice of medicine, podiatry, or acupuncture resulting in differences in the quality of healthcare delivered that is not due to access-related factors or clinical needs, preferences, and appropriateness of intervention.”
The full version of the rule can be viewed here. Public comment on the proposal is due Aug. 26.
Earlier version sparked provider criticism
The Lund Report reported earlier that the medical board paused its planned July 11 vote on the rule after being contacted by the Oregon Medical Association, a professional association for physicians and physician assistants. Mark Bonanno, the association’s general counsel and vice president of health policy, wrote in a June 27 email that his group had heard concerns that the rule was too vague and asked for more time to improve its wording.
The board received other criticisms as well concerning the earlier version of the rule, according to newly obtained public records. The providers did not submit their criticisms during the public comment period that ended on May 22.
“The proposed rule change may create a chilling effect on medical practice in Oregon,” Michael Mulkey, CEO of Willamette Valley Medical Center in McMinnville, wrote to the board in a June 24 obtained by The Lund Report. “Physicians and acupuncturists could become overly cautious and hesitant in their clinical-making, fearing potential repercussions from misinterpreted actions of statements.”
Emails ranged from irate to more diplomatic requests for it to reconsider the rule’s language on microaggressions.
Dr. Jame Knight, who works in Corvallis, wrote in an email to the board that he was concerned the rule would drive physicians out of the state.
“I understand the intentions may have been well placed, but this can wreck a physician’s career without legitimate justification,” he wrote.
Dr. Edward Lin, who works in Clackamas County, wrote that the earlier rule would have invited “politics and culture wars into patient care.” He wrote that some racial groups are at higher risk for some diseases, such as Asians disproportionately being infected with hepatitis B, and refugee populations he treats need to be screened for parasites and tuberculosis. The rule would have complicated treating these patients, he wrote.
“There are already laws against discrimination, religious, gender, sexual orientation, etc.,” Dr. Daniel Byrd, a podiatrist who works in Pendleton, wrote to the board. “Therefore, adding this to the professional conduct rules is entirely unnecessary, and a waste of time and money.”
Courtni Dresser, the Oregon Medical Association's vice president of government relations, told The Lund Report that her group is pleased that the board responded to its feedback on the rules. She said that the original rule would have been so punitive it would have made it difficult for health care professionals to learn and have conversations about unconscious bias.
Dresser said her group will submit additional comment on the rule. For now, she said the association and the board share the same goal of addressing discrimination in health care settings.
“I think we're all swimming towards the same place,” she said. “Just how do we get there?”
Bias strategies vary
Five states — California, Maryland, Michigan, Minnesota and Washington — have laws requiring at least some health care workers to take implicit bias training. Oregon does not.
The earlier version of the proposed medical rule was drafted by staff in response to the board’s 2023 Diversity, Equity, and Inclusion Action Plan that called for codifying medical discrimination as unprofessional conduct.
Keith Cunningham-Parmeter, a law professor at Lewis & Clark Law School, told The Lund Report that both the old and new version of the proposed medical board rule uses what he called a very broad definition of discrimination that includes unintentional acts. He said that a significant challenge to addressing discrimination is that implicit and subconscious bias are widespread.
“Our brains engage in unknowing acts of discriminatory decision making,” said Cunningham-Parmeter, who studies discrimination and bias in American law. “So what is the law supposed to do about these unintentional acts that lead to horrible outcomes?”
He said the more standard remedy involves giving more education to decision-makers and encouraging them to check their choices for unconscious bias.
“Courts have had a really hard time affixing liability for implicit bias because it is so hard to prove that someone engaged in discriminatory acts, even though the social science data show that implicit bias is widespread,” he said.
Ross, the board analyst, said, “The proposed rule is not expected to change the way physicians, PAs, or acupuncturists practice in Oregon as discrimination in the practice of medicine/acupuncture is already considered unethical and is prohibited by federal laws and facility bylaws.”