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.