We are working on revisions to our medical staff bylaws and one of the committee members asked whether our credentialing process complies with the Americans with Disabilities Act (“ADA”). This led to a long and winding discussion about whether we need to comply with an employment law in this context. Do we? Isn’t credentialing completely separate from employment?
OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
It is true that the ADA is an employment law, so on its face, does not appear to apply to credentialing processes. It is also true that “typical” credentialing practices would likely violate the ADA – because hospitals have traditionally treated health information being sought from applicants just as they would treat any other information being requested on an application form – references, verifications, licensure matters, etc. As a result, in the credentialing process, health information is requested and reviewed at a stage that is likely analogous to the “pre-offer” stage under the ADA – the most restrictive stage of employment where employers aren’t yet permitted to request any health information. (Under the ADA, employers do eventually get to request and consider everything necessary that is related to health. It is more a question of managing the timing of those requests.)
As you pointed out, though, credentialing IS different from employment, so why should we care if the process is compliant with the ADA – an employment law? There are several reasons. First, there are some hospitals that do directly employ physicians, and the ADA is clearly applicable to those relationships. Second, even if the hospital isn’t the employer, most hospital-affiliated physician groups make employment contingent on the physician obtaining privileges at an affiliated hospital (i.e., successfully completing the credentialing process), and it is unclear whether a court would agree that one arm of a corporate entity can ask questions or seek information that the other arm of the same entity could not yet legally request. Third, some jurisdictions have expanded the ADA to independent contractor relationships, and finally, there is a trend in court cases today where independent contractor physicians are claiming to be employees even when there are no employment agreements in place, claiming that the hospital exercises sufficient control over them to render them employees (for example, by making them comply with protocols, order sets, taking call, and medical staff bylaws requirements).
One way to address concerns about the credentialing process would be to change the timing of requesting and reviewing health information, asking detailed questions about the health of all applicants but waiting to review that information until after the Credentials Committee has determined that an individual is “otherwise qualified” for the clinical privileges requested on the basis of everything else that is being considered – education, training, experience, etc. Only after that determination is made should the health information be reviewed. Due to the sensitivity of that information, we also recommend that only one or two medical staff leaders review that information – reporting to the Credentials Committee that there are no concerns, or that concerns were raised and now the committee needs to review and discuss accommodations.
If you have a quick question about this, e-mail LeeAnne Mitchell at LMitchell@hortyspringer.com.