Edwards Wildman Client Advisory: Age-Based Testing Of Physicians: Best Practices or Blatant Age Discrimination?


    Stanford Hospital and Clinics in Stanford, California recently implemented its “Late Career Practitioner Policy,” requiring physicians over the age of 74 1/2 who are applying for privileges, and physicians over the age of 75 who seek to renew their privileges, to undergo various testing as a condition of receiving or maintaining admitting privileges at the Hospital. The components of the assessment mandated by the policy are an initial peer assessment of the physician’s clinical performance, and a physical and cognitive screening that addresses the physician’s capacity to perform the clinical privileges he seeks to maintain at the Hospital. If the results of these exams indicate patient care concerns, the Service Chief and Chair of the Credentials Committee will recommend further evaluation, and can either permit the physician to maintain the privileges requested, or recommend modification, restriction or revocation of the clinical privileges sought. If there are any limitations placed on the practitioner, including revocation of privileges, the practitioner is entitled to a hearing under the Hospital’s Medical Staff Bylaws.

    The policy sets out its basis and purpose:

    As individuals age, both the natural aging process and specific medical conditions and medications have the potential to adversely affect the capacity of practitioners to carry out their clinical responsibilities. Given this reality, it is imperative from the view point of patient safety as well as physician well being, to establish a process by which late career clinicians’ performance and capacities can be fairly and accurately evaluated. The purpose of this policy is to establish this evaluation process. Key elements of this policy are to assure high quality care for the patient, to be supportive of the practitioner, and to address issues that the individual may not recognize.

    The purpose of the policy is clear – it is another step by the Hospital to ensure high quality and effective patient care. Hospital administrators considering this type of policy may be asking, “With respect to laws prohibiting age discrimination, what are the ramifications when older employees are singled out for testing?”

    According to Congress, such tests are permissible when age is a “bona fide occupational qualification” of the position. An employer can justify its age-based testing by demonstrating that the testing is "reasonably necessary" to the overriding interest in public safety and the employer is compelled to rely on age as a proxy for the safety-related job qualification validated in the first inquiry. To prove that age is a valid proxy, the employer can show either (i) a substantial basis for believing that all or nearly all employees above an age lack the qualifications required for the position; or (ii) that reliance on an age classification is necessary because it is highly impractical for the employer to insure by individual testing that its employees will have necessary qualifications for the job. Thus, if challenged, Stanford’s Late Career Practitioner Policy would be deemed lawful so long as it could show that either (i) all employees over the age of seventy-five have a significant likelihood of possessing some physical or cognitive issue that prevents them from discharging their duties; or (ii) using individualized testing of every doctor who applies for or maintains admitting privileges as opposed to the age based classification testing at the Hospital would be highly impractical or costly.

    In an article published by Dr. Ann Weinacker, Stanford’s Chief of Staff, Dr. Weinacker sets out Stanford’s reasoning for its conclusion that a physician’s advanced age can directly correlate to patient safety concerns. According to Dr. Weinacker, “the natural aging process and specific medical conditions and medications have the potential to adversely affect [physicians’] capacity to carry out [their] clinical responsibilities.” Stanford relies on data demonstrating that after age 75, an individual’s cognitive functions decline at a faster rate than comparable, younger adults, as well as data showing that in some complex procedures, patients of older surgeons have a higher mortality rate than patients of comparable younger surgeons. Furthermore, while not specifically articulated by Dr. Weinacker, conducting its three-part test on all of its 1,800 credentialed physicians as opposed to only the 25 doctors over the age of 75 who currently maintain privileges at the Hospital would likely be a burden, and may also be another justification for Stanford’s age-based policy.

    While this type of policy is not commonplace in the health care world yet, mandatory testing of older employees (or even mandatory retirement) is commonplace in other industries, such as aviation, law enforcement, and public transportation, where the public’s safety and well-being is directly tied to the services provided, and age directly correlates to an employee’s abilities to execute the duties of his position. When properly justified and used appropriately, age-based testing can serve as an additional means for the health care industry to meet its ultimate goal of providing safe and effective patient care to the public.

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