In February 2020, just prior to COVID-19 dominating the news, wreaking havoc on the health care delivery system and leading to tens of thousands of deaths and hundreds of thousands of positive cases, the Equal Employment Opportunity Commission (the “EEOC”) filed suit against Yale New Haven Hospital, Inc. (“YNHH”) alleging violations of the Age Discrimination in Employment Act (“ADEA”) and Americans with Disabilities Act (“ADA”). The EEOC attempted pre-litigation settlement through conciliation before filing suit. The EEOC is seeking compensatory and punitive damages as well as permanent injunctive relief in the form of eliminating the policy.

The EEOC suit alleges that YNHH’s Late Career Practitioner Policy (the “YNHH Policy”) which applies to certain individuals aged seventy (70) years old and older applying for or seeking renewal of their medical staff privileges is a violation of the ADEA. The YNHH Policy requires applicants and current medical staff members to undergo an ophthalmologic and neuropsychological medical examination to receive or maintain their medical staff privileges. The EEOC alleges that these required medical examinations violate the ADA as they are not related to the job or required for any business purpose.

YNHH requires physicians with medical staff privileges to undergo a thorough evaluation of their skills and competence every two (2) years after their initial appointment. The evaluation assesses the physician’s ability to use his or her medical staff privileges with reasonable skill and in a safe manner. As part of the YNHH Policy, physicians, dentists, podiatrists and certain advanced practice providers are required to undergo an eye exam and mental health exam, whether or not YNHH had any concern about their eyesight or neuropsychological abilities.

As of April 2019 and pursuant to the YNHH Policy, 14 of the 145 physicians (approximately ten percent) who had undergone the additional evaluation were identified by YNHH as “Borderline Deficient.” One (1) physician failed the evaluation, and five (5) physicians refused to even undergo the evaluation, resigned, or changed their status with YNHH.

The EEOC’s suit was brought after the Commission received a complaint from Dr. Irwin Nash, a pathologist and internist at YNHH. Although Dr. Nash passed the required exams, the suit cites him as one of the “aggrieved employees and individuals who were adversely affected” by the policy.

In January 2020, The Journal of the American Medical Association published a study titled “Cognitive Testing of Older Clinicians Prior to Recredentialing” that describes the program at YNHH. From October 2016 through January 2019, 141 clinicians aged seventy (70) years or older who requested reappointment to the YNHH medical staff underwent a neuropsychological assessment. 12.7 percent of the 141 clinicians tested demonstrative cognitive deficits that were likely to impair the physician’s ability to practice medicine independently. None of these eighteen (18) clinicians had previously been brought to the attention of medical staff leadership because of performance problems.

The YNHH Policy is not unique. In 2012, Stanford Medicine implemented a late-career practitioner policy that required peer evaluations from three (3) colleagues, examination by the practitioner’s primary care provider, and cognitive screening for practitioners aged seventy-five (75) years and older.

COVID-19 has underscored the supply and demand issues for physicians and other licensed professionals to provide health care services during a pandemic in urban, suburban and rural communities.

As the population of the United States and the “baby-boom” generation grow older and acute health care needs persist, we are likely to see an increase in age-related employment policies, especially in the health care industry where high-quality patient care must remain the priority. It is critical that hospitals implement policies and procedures that do not violate state or federal laws in their efforts to protect patient safety. Similarly, physicians and other licensed professionals must ensure their clinical skills remain sufficient to care for their patients and comply with policies that attempt to ensure the same.

Hospital and health systems and all entities that credential providers should review existing policies and procedures and carefully implement new policies that adhere to state and federal laws. Physicians should be actively engaged in these reviews and policy updates.