ADA

January 25, 2024

Posted on by Courtney Patterson

QUESTION:
Our hospital wants to require employees to submit documentation to Human Resources of their COVID-19 and flu vaccination status.  One employee complained that this is a HIPAA violation.  Is it?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
No.  A hospital is acting in its role as an employer (not a covered entity/health care provider) when it asks employees to answer questions or provide documentation about their vaccination status.  Hospitals store such information in the employee’s employment record, not in the employee’s medical record.

HIPAA specifically excludes employment records from the definition of “Protected Health Information.”  The relevant definition states:  “Protected health information excludes individually identifiable health information…[i]n employment records held by a covered entity in its role as employer.”  45 C.F.R. § 160.103.

Thus, information that a hospital obtains when it asks an employee about vaccination status isn’t covered by HIPAA.  It follows that HIPAA isn’t violated if the hospital then discloses that information to managers and supervisors so they can enforce the hospital’s policies.

Although HIPAA doesn’t apply, the Americans with Disabilities Act (“ADA”) does govern information that a hospital holds in its role as an employer.  The regulations implementing the ADA state that information “regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record, except that:  (A) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations.”  29 C.F.R. § 1630.14.

It’s important to recognize that in some cases a hospital could hold information about vaccination status in its role as a covered entity/health care provider under HIPAA.  For example, a hospital might conduct a clinic by which it gives flu shots to members of the community.  HIPAA would apply to that information, because it was created by the hospital in its role as a provider of health care services.  Thus, the hospital could not disclose those vaccination records to a local third-party employer unless the individual signs a HIPAA authorization.

If you have a question about this issue, please e-mail Phil Zarone at pzarone@hortyspringer.com.

June 29, 2023

Posted on by Courtney Patterson

QUESTION:
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.

August 4, 2022

Posted on by Courtney Patterson

QUESTION:
We are developing a hospital-wide animal visitation policy. What are some things we need to consider including so that we are compliant with the Americans with Disabilities Act?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
This is a great policy to have. We all love animals, but it’s important to make sure that you take the necessary steps to identify the proper use of service animals and acceptable visitation rules for therapy animals. Today, let’s focus on service animals. Under the ADA, covered entities, like most hospitals, are required to provide reasonable accommodations for people with disabilities. The service animal rule falls under this requirement. In other words, places that have a “no animals allowed” policy provide an exception that allows service animals in their facility.

What is a service animal? Well, it is a dog of any breed that has been trained to work or perform a task for an individual with a disability. For example, a person with a panic disorder may have a dog that is trained to sense an upcoming panic attack and to help lessen its impact.

When building an animal visitation policy, you want to include a section that considers service animals and sets out general rules for your staff to follow. For instance, when it is unclear as to whether a dog in your facility is a service animal, your staff may not inquire into the nature of the person’s disability, may not ask for documentation, and may not require that the dog perform its trained task. Rather, your staff may only ask (1) if the dog is a service animal that is required because of a disability and (2) what work or tasks has the dog been trained to perform.

If the patient requires basic assistance from staff, then staff may be required to accompany the patient while they attend to their service animal (i.e., taking their dog for a walk, but requiring a wheelchair). Under the ADA, the patient, or service animal handler, bears full responsibility for the dog and must be in control of it at all times. This includes making arrangements to pass the dog off to family members, or even boarding the dog, in the event that the patient is unable to provide the necessary care.

Make sure to review the ADA regulations governing service animals in detail, and feel free to reach out to Mary Paterni with any additional questions.

November 19, 2020

Posted on by hortyspringer

QUESTION:        We have an applicant for medical staff appointment who is over 80 years old. Are there certain things we can require during the credentialing process before he gets on staff?

 

ANSWER:           Let’s start with Henry’s favorite answer:  “It depends,” because it always does.

We recommend that Hospital Medical Staffs try to comply with the Americans With Disabilities Act (“ADA”) and Age Discrimination in Employment Act (“ADEA”) in the credentialing and recredentialing processes.  Whether the ADA and ADEA, which are both employment-based statutes, apply to the appointment process is still an open question.  But there are a number of cases, in reviewing these and other civil rights statutes, that have concluded there should be broad application of these laws and have applied them to the credentialing and recredentialing processes.

Furthermore, more and more physicians are employed, and these statutes will apply to your employed physicians.  It makes no sense to have two sets of rules in your credentialing process, one for employed physicians and one for private practice physicians (especially if the standard for private practice physicians is higher).  Therefore, we recommend that hospitals get as close as possible to compliance with the ADA and the ADEA, including in their appointment and reappointment processes.

Under the ADA, an employer is prohibited from requiring a health examination or making health-related inquiries until after a conditional offer of employment.  In the medical staff world, this means there can be no required physical examination and no health status questions until after the Credentials Committee has determined that an applicant is otherwise qualified to practice.

After the conditional offer, the employer is permitted to ask any health status questions and/or require a fitness for practice evaluation so long as it asks the same questions and requires the same evaluation for similarly situated applicants.  In the medical staff world, this means that after the Credentials Committee has made a conditional recommendation for appointment, a physical examination could be required and health status questions could be asked as long as this is the practice for all applicants.

If you do not typically ask health status questions or require a physical exam, you cannot do so just for the 80-year-old applicant.

There is an exception to this rule if a concern about a potential impairment is brought to your attention.  So, for example, if a peer reference raised a concern about the applicant’s cognitive impairment or eyesight or hearing or technical skills in the OR, you could follow-up.  The same would be true if during the interview the applicant was unsteady on his feet or confused.  Under these circumstances you would be permitted to follow-up on the health concerns and you could require a fitness for practice evaluation.

The ADEA would also prohibit you from making an appointment (or reappointment) decision based solely on the physician’s age.  The days of “congratulations on turning 75, you’ve been elevated to the Honorary Staff” are gone – as they should be.  It is worth pointing out that the requirement that a physician get a physical or cognitive exam based on the physician’s age (as some Late Career Practitioner Policies do) is being challenged by the EEOC.  See EEOC v. Yale New Haven Hospital.  https://www.eeoc.gov/newsroom/eeoc-sues-yale-new-haven-hospital-age-and-disability-discrimination.  The challenge is based on both the ADEA and the ADA.

 

March 21, 2019

Posted on by hortyspringer

QUESTION:        A physician came back from one of your leadership programs and was worried about whether our credentialing process complies with the Americans with Disabilities Act (“ADA”).  I’m confused about why we would need to comply with a law that only applies to employment.  Isn’t credentialing completely separate?

ANSWER:            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, medical staff bylaws requirements.

One way to address concerns about the credentialing process is to change the timing of requesting and/or 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 questionnaire 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 discuss accommodations.

March 5, 2015

Posted on by hortyspringer

QUESTION:          We employ physicians through an entity affiliated with the hospital.  As a part of the employment process, we ask certain medical questions and conduct medical examinations after an offer of employment has been made. This process generates documentation and information on these physicians’ medical conditions. How should we maintain that documentation and information?

ANSWER:        With employed physicians, Title I of the Americans with Disabilities Act (“ADA”) comes into play. Under the ADA, any medical information obtained through medical examinations or disability-related inquiries has to be maintained separately and confidentiality. As a part of this requirement, the Equal Employment Opportunity Commission (“EEOC”) has advised that medical information cannot be kept in an employee’s regular personnel file. Specifically, the EEOC instructs:

Medical information must be collected and maintained on separate forms and in separate medical files. An employer should not place any medical-related material in an employee’s non-medical personnel file. If an employer wants to put a document in a personnel file, and that document happens to contain some medical information, the employer must simply remove the medical information from the document before putting it in the personnel file.

Accordingly, any information obtained as a result of medical inquiries or examinations in the employment process must be kept confidentially and separately from routine employment files. We recommend that the same procedure be adopted for the medical staff process and any medical information that is acquired through that process. More and more hospitals are employing physicians and, typically, the employment contracts are conditioned on appointment to the medical staff and grant of clinical privileges. Although there has not been a case commenting on this issue, there is a risk that the courts could apply the confidentiality requirements of Title I of the ADA to the credentialing process under these circumstances. Further, some courts have given the term “employee” under federal discrimination laws, including the ADA, an expansive interpretation to include members of the medical staff that do not have an employment relationship with the hospital because of the amount of “control” (for example, through the peer review process) the hospital exercised over the physician’s practice. Finally, maintaining health information in a separate file helps reinforce the idea that health concerns will be addressed in a confidential and supportive manner. Thus, we recommend maintaining this information separately from routine employment and credentialing files for both employed physicians and those who are solely medical staff members and granted clinical privileges.