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.

August 24, 2017

QUESTION:        Our hospital-affiliated group has identified a new candidate that they are very interested in employing.  The candidate disclosed that she had a problem in the past that has been resolved.  It turns out that, three years ago, the physician was arrested and charged with second degree cruelty to children, a felony.  The charges were filed after the physician brought her infant daughter to the ED with a fractured femur.  According to the affidavit filed in support of the arrest, the injury, along with others suffered by the child, raised a concern about child abuse.  The charges were subsequently dismissed.

Our group knows about the charges, but says all of her references are outstanding.  They are willing to give her a chance.  What do we do?

ANSWER:            Whenever there is an issue or a concern with an applicant, we recommend you pause and remember to keep “the burden on the applicant.” The applicant has the burden to address and resolve any questions that are raised during the initial appointment process.

When an applicant has had a recent criminal arrest, especially for a felony, you will want to explore, with the applicant, issues surrounding the charges, including the resolution of the charges.  Make sure you check state law first to see if there is a prohibition against asking questions about criminal matters when the charges have been dismissed.  Consider asking the applicant about the charges, the ultimate disposition of the charges, and the conditions pursuant to which the charges were dismissed.

Also consider whether the charges might have triggered an obligation on the part of the physician to notify the state medical board or the hospital where the physician was practicing and ask the physician whether she provided the required notice.  If the physician did not provide notice, especially if required, this should be explored as well.  You might also inquire about steps the physician has taken to address underlying issues that contributed to the criminal charges.   Consider requiring the physician to provide the hospital with correspondence to and from the prosecuting attorney regarding the charges and the dismissal of the charges and any conditions that were imposed.

Minor criminal offenses, especially when the matter is old and there has been no repeat offense, may not derail an application or a favorable employment decision completely.  However, serious charges, especially when the charges are recent, go to the issue of a physician’s reputation, character, ethics and perhaps integrity and require careful review and consideration.