The aging of the U.S. workforce poses some unique challenges for
employers in the healthcare industry. Older clinicians often
possess experience and institutional knowledge that is highly
valued and difficult to replace, and many such providers deliver
excellent care into their late 60s and beyond. On the other hand,
there may sometimes be legitimate concerns that some older workers
are prone to physical and cognitive impairment or diminished
competence, which can impact quality, lead to poor performance, and
pose a risk to patient safety.
Given these concerns and the legal obligation of healthcare
institutions to monitor the quality of care rendered by
practitioners, some hospitals and other institutions have
considered the delicate topic of how best to monitor the
performance of older clinicians.
While such concerns may be genuine, actually treating older
clinicians differently on the basis of age would create risky
challenges. Any thought about implementing such practices must
include consideration of the Age Discrimination in Employment Act
(ADEA) and other employment discrimination laws.
The traditional approach to monitoring clinician competence and
performance has been to require a period of focused review for new
practitioners, and to conduct assessments when issues affecting the
provision of safe, high-quality patient care are identified. For
clinicians, whether they are physicians or other healthcare
professionals, licensing requirements and medical staff bylaws
obviously play an important role in maintaining high-quality care.
The Joint Commission's Ongoing Professional Practice Evaluation
process also plays an important role in this regard.
Some employers concerned about the prospect of waiting for a
concrete indicator of trouble have considered taking a more
proactive approach designed to identify potential impairments among
their employed clinicians.
Different methods of providing increased oversight of older
practitioners have been considered. These include requiring
periodic physical and cognitive screening exams of clinicians after
they reach a certain age and conducting focused reviews of their
cases.
For practitioners who normally go through a medical staff
reappointment process every two years, hospitals could consider
reducing the reappointment period from two years to one year when
physicians reach a certain age, and requiring an accompanying
fitness-for-work evaluation by a qualified vocational professional.
Some have even toyed with the concept of mandatory retirement. Each
such age-based option carries with it the real risk of a
discrimination claim.
Age As A "Bona Fide Occupational Qualification"
Although the ADEA prohibits discrimination on the basis of age,
it allows age to be used in an employment decision if it is a
"bona fide occupational qualification" (BFOQ) of the job.
To establish a BFOQ, an employer must demonstrate that the
classification is reasonably necessary to the normal operation of
the business, and that the employer is compelled to rely on age as
a proxy for safety-related job qualifications. Age will be deemed
to be a valid proxy only if it can be shown that either 1) the
employer had reasonable cause to believe all or nearly all
employees above a certain age lack the qualifications required for
the position; or 2) it is impossible or highly impractical to deal
with older employees on an individualized basis.
Applications of the BFOQ test has supported certain age-based
restrictions for airline pilots, bus drivers, law enforcement
individuals, and firefighters, but no court has yet made a
definitive ruling that age is a BFOQ for physicians or other
clinicians. But the courts have made it clear that it is not easy
to claim age as a BFOQ.
The successful assertion of this defense as permitting age-based
monitoring policies for clinicians would require a showing that the
policy effectuates a public safety goal because all clinicians over
a certain age are likely to develop or possess some physical or
cognitive issue that impacts their ability to provide quality care,
and that there is no acceptable alternative to advance that goal
that would not have a discriminatory impact.
Age-Based Monitoring Under The ADA
Policies providing for increased monitoring of older physicians
also may be subject to challenge under the Americans with
Disabilities Act (ADA). The ADA prohibits discrimination on the
basis of a disability, and defines disability as: 1) a physical or
mental impairment that substantially limits one or more major life
activities; 2) a record of such an impairment; or 3) being
regarding as having such an impairment. Included among the
ADA's disability discrimination prohibitions are restrictions
on an employer's ability to make disability related inquiries
or require medical examinations of employees.
Such inquiries are permitted only if they are "job related
and consistent with business necessity." A medical
examination may be job related and consistent with business
necessity if it is based on reliable information that job
performance or safety may be impaired, or a reasonable belief that
there is a direct threat to the employee's own safety or that
of others. Therefore, a policy that requires clinicians to undergo
medical examinations when they reach a certain age could violate
the ADA – unless the employer can demonstrate that the age of
a clinician, by itself, raises legitimate concerns about
patient safety.
The ADA poses additional challenges to age-based monitoring
practices. A requirement that a clinician undergo medical screening
at a certain age based solely on the assumption that age leads to
impairment could trigger a discrimination claim that the employed
clinician is "regarded" as disabled.
If a medical screening is performed and discloses an impairment,
you will be required to engage in an individualized and interactive
process for determining whether and how the impairment impacts the
clinician's ability to perform job functions, and whether there
are reasonable accommodations that will permit the clinician to
perform the job. Action based solely on the finding of an
impairment, without more, could also violate the ADA.
Balancing Patient-Safety Concerns And Compliance
Recognizing the potential legal implications of a policy that
imposes increased monitoring requirements on aging clinicians,
employers should focus attention on the quality of care actually
provided. If you develop legitimate concerns that an impairment is
impacting a practitioner's ability to safely provide care
– based on objective observations rather than assumptions
– requesting a medical evaluation may be job related and
consistent with business necessity, and therefore compliant with
the ADA.
Similarly, requiring a focused review of an older clinician's
cases as a response to legitimate quality concerns, or asking an
older clinician to undergo a medical or cognitive evaluation as a
response to a legitimate concern about a performance-impeding
impairment should also survive scrutiny under the ADEA, because
such action is based on factors rather than age. Each situation
will require an individualized assessment of the
circumstances.
A balance can be struck between the seemingly competing
obligations to protect patient safety and comply with employment
discrimination laws. A proactive approach that involves a careful,
organized and uniform system for measuring competency and
addressing performance issues can help achieve this balance.
These are some of the basic concepts that you should incorporate
into any performance monitoring system to reduce the risk of a
violation of discrimination laws:
- require ongoing practitioner performance evaluations for all clinicians not just those who reach a certain age;
- identify specific non-age-related triggers that indicate the need for increased performance monitoring and intervention;
- develop criteria to be used for evaluating the performance of practitioners both periodically and when issues affecting safe care are identified;
- identify options for addressing performance deficiencies that permit the clinician to continue working while protecting patient safety (e.g., the elimination of certain functions or narrowing the scope of functions); and
- commit to address performance issues that are identified immediately.
In the end, there is still no substitute for careful and
consistent quality-monitoring systems, which include individualized
performance evaluations and recredentialling processes. Treating
older clinicians differently strictly on the basis of age is a
high-risk proposition.
But by establishing an organized and clearly defined performance
monitoring and management system, and by being diligent and
consistent in the application and enforcement of policies focused
on the quality of care, healthcare employers should be able to
protect the rights of both the patients they serve and the
clinicians they employ.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
