March 21, 2019

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

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.