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Federal Agency Sues Hospital Over Late Career Practitioner Policy

On Tuesday, February 11, 2020, the Equal Employment Opportunity Commission filed a complaint against Yale New Haven Hospital alleging that the hospital’s Late Career Practitioner Policy violates both the Age Discrimination in Employment Act and the Americans with Disabilities Act.

If successful, the action could upend similar policies across the country that are designed to protect hospital patients by screening physicians for natural, age-based decline. The EEOC’s complaint came as a surprise to many medical staff peer review experts, who question the EEOC’s reasoning.

Yale New Haven Hospital Likely to Defend Its Late Career Practitioner Policy

According to the EEOC complaint, in March 2016, Yale New Haven adopted a policy requiring physicians ages 70 and older to undergo a basic ophthalmologic and neuropsychological medical examination as part of their applications for medical staff appointment, reappointment, and privileges.

The EEOC argues that this age-based requirement violates the ADA and ADEA because—according to the EEOC’s allegations—such screenings “are not job-related and consistent with business necessity.” Peer review organizations likely will vigorously disagree with this argument, pointing out that a physician’s eyesight and cognitive functioning are clearly job-related. Similarly, regarding business necessity, it has long been recognized that protecting patients from impaired practitioners, whether due to age-related factors or others, is fundamental to a hospital’s business.

The EEOC also adopted an aggressive position in arguing that employment statutes, such as the ADA and ADEA, apply to the medical staff’s privileging conditions because, in this case, membership on the Yale New Haven medical staff is a condition for employment at Yale Medical School. Physician employment by hospitals varies across the country – some states even prohibit hospitals from employing physicians to provide care – calling into question the EEOC’s application of the ADEA and ADA to medical staff membership. 
 
It appears that the EEOC is approaching the Yale New Haven case in earnest. In its press release, the agency states that before filing the complaint, it attempted to settle the case through the EEOC’s conciliation process. That Yale New Haven, a high-profile institution, is willing to take a public stand and go to court over the EEOC’s criticisms makes it clear that both sides are prepared to defend their positions.
 

The Case for Late-Career Practitioner Policies

Late career practitioner policies have increased in popularity due to widely-accepted evidence that a significant portion of the adult population experiences some degree of cognitive and/or physical decline as they age. Research shows that, although there is significant variability from one person to another, mean cognitive ability declines by more than 20% between ages 40 and 75.< Physicians are not immune from this natural process. Sometimes (but not always), the physical or cognitive decline will interfere with a physician’s ability to provide care safely. For example, studies have shown that aging in surgeons is associated with increased morbidity and/or mortality in patients undergoing thyroidectomy, carotid endarterectomy, knee replacement surgery, and coronary artery bypass grafting.

In response, medical staffs have adopted cognitive and physical screening policies similar to those at Yale New Haven. If the screening results suggest a decline that may impact the practitioner’s ability to practice safely, additional steps are taken to assure patient protection. In these instances, well-written policies include consideration of reasonable accommodations and voluntary practice pattern changes to both assist the physician and protect patient safety.

The EEOC’s position, as suggested in its press release, appears to be that a mandatory neuropsychological and health screening is appropriate only if there is a “suspicion of decline” specific to an individual physician. In many instances, however, such a suspicion may arise only after patients have been harmed. Waiting for patient harm to occur before evaluating practitioner safety is contrary to the credentialing and peer review goals of preventing patient harm. Additionally, having to wait until there is a suspicion of decline, rather than adopting a universally applicable policy, raises several legal questions, including what constitutes such a suspicion and whether the practitioner is entitled to challenge an individually imposed evaluation requirement.

Late-Career Policies Have Attracted Support

Late-career practitioner policies have been discussed in many forums, including JAMA and The New York Times, and supported by various physician and patient health organizations. Many conclude that well-devised late-career practitioner policies can protect patients while also protecting the rights of physicians to continue to practice as long as they are safely able to do so.

Of course, late-career policies are not universal, and many medical staffs make reasoned decisions to use means other than mandatory screenings to assess continuing competency. For medical staffs that do adopt late-career policies, however, they generally do so after concluding that the policies protect patients, are backed by research and are supported in the industry.

If the court accepts the EEOC’s arguments, medical staffs throughout the country may need to reevaluate their own late-career practitioner policies. In the meantime, medical staffs should review their existing policies to assure that they are reasonable, fair, and predicated on patient safety and should discuss with their counsel the risks and benefits of maintaining this approach.

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