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COUNSEL'S CORNER: Aging Physicians and the ADEA

Friday, February 21, 2014
By Phil Zarone

Phil Zarone, a partner with Horty, Springer & Mattern, Pittsburgh, works extensively with hospitals and physician leaders on compliance with federal and state regulatory requirements and medical staff matters. Zarone has served as a faculty member for Horty Springer seminars on peer review, medical staff hearings, and allied health professionals, and is a frequent contributor to Action Kit for Health Law and Medical Staff Leader Monthly. He serves as an adjunct professor of law at Duquesne University, where he teaches a class on health care regulation. He is available at pzarone@HortySpringer.com.

Hospitals are between a rock and a hard place as they try to oversee the quality of care provided by a growing population of older physicians. On the one hand, we all suffer from a decline in physical and cognitive abilities over time. Medical journals include numerous studies suggesting that the oldest physicians provide lower quality medical care. Hospitals that fail to adequately monitor the skills of their senior physicians put patients at risk and invite negligence lawsuits.

On the other hand, the federal Age Discrimination in Employment Act (ADEA) limits the ability of hospitals to consider age as they evaluate the qualifications of a growing population of employed physicians. Hospitals that adopt age-based credentialing and peer review policies could be the target of an ADEA lawsuit by physicians.

What to Do?

Hospitals are addressing this dilemma in different ways. The majority treat aging physicians like any other medical staff member. They hope the hospital's credentialing and peer review processes are sensitive enough to identify concerns with aging physicians, and they rely on their medical staff leaders to intervene when needed.

A growing minority of hospitals are concerned that their credentialing and peer review processes are not able to identify the insidious effects of age. These hospitals are adopting policies that call for more rigorous scrutiny of physicians after a certain age. They may reappoint older physicians every year rather than every two years, conduct a focused review of their cases, and/or require them to obtain physical and cognitive exams.

Hospitals that wish to adopt such age-based policies--and physicians who may wish to challenge them--are struggling to understand whether these policies comply with the ADEA. The ADEA generally prohibits age-based classifications. However, it does allow age to be used in employment decisions if it is a “bona fide occupational qualification” (BFOQ) of the job. Thus, a key question for hospitals, physicians, and their counsel is whether age can be a BFOQ that justifies age-based credentialing and peer review policies.

ADEA Standard

In Western Airlines v. Criswell, 472 U.S. 400 (1985), the Supreme Court stated that a BFOQ must meet two requirements:

(1) “[T]he job qualification which the employer invokes to justify his discrimination must be reasonably necessary to the essence of his business.” (Emphasis in original.) Where the employer's business involves public safety, “[t]he greater the safety factor, measured by the likelihood of harm and the probable severity of that harm in case of an accident, the more stringent may be the job qualifications.” This inquiry “'adjusts to the safety factor’ by ensuring that the employer's restrictive job qualifications are 'reasonably necessary’ to further the overriding interest in public safety.”

(2) The employer must be “compelled to rely on age as a proxy for the safety-related job qualifications validity in the first inquiry.” An employer can show this in two ways:

(a) The employer could show that it “had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all [persons over the age qualifications] would be unable to perform safely and efficiently the duties of the job involved”; or,

(b) Alternatively, the employer could prove that it was “impossible or highly impractical to deal with the older employees on an individual basis. One method by which the employer can carry this burden is to establish that some members of the discriminated-against class possess a trait precluding safe and efficient job performance that cannot be ascertained by means other than knowledge of the applicant's membership in the class.”

 

The Supreme Court observed that this test is essentially identical to the test developed by the Equal Employment Opportunity Commission (EEOC) and published as an “interpretation” at 29 C.F.R. §1625.6(b).

There is little doubt that competent physicians are “reasonably necessary” to the operation of a hospital. Thus, hospitals wishing to use age as a BFOQ should be able to satisfy the first element of the Western Airlines test.

Also, hospitals probably will not be able to prove that “all or substantially all” physicians over a certain age are unsafe to practice. Newspapers periodically run stories of 80-year-old family practitioners in small towns still happily serving the community. Thus, to satisfy the Western Airlines test, hospitals that wish to adopt age-based credentialing and peer review policies will have to show that some older physicians possess a trait “precluding safe and efficient job performance” and this trait “cannot be ascertained by means other than” age.

Related Litigation Pending

No court has yet addressed whether age is a BFOQ for physicians. However, a case pending before the U.S. Court of Appeals for the Fifth Circuit may provide important guidance with respect to the issue of whether aging physicians possess a disqualifying trait that cannot be ascertained except by referring to the individual's age.

In EEOC v. Exxon Mobil Corp., No. 06-cv-1732 (N.D. Tex. Dec. 19, 2012), the court considered Exxon's adoption of a mandatory retirement age for its corporate airplane pilots. The EEOC challenged Exxon's action, claiming it violated the ADEA. (Since Exxon does not involve commercial pilots, the mandatory retirement rule for pilots established by the Federal Aviation Administration does not apply, and Exxon's actions must satisfy the ADEA.)

Exxon justified its mandatory retirement rule on two grounds. First, it claimed that age increases the risk of “sudden incapacitating events” that could jeopardize the safety of passengers. Second, it argued more broadly that age causes a “progressive physiological and cognitive decline.” Importantly, Exxon argued that neither “sudden incapacitating events” nor “progressive decline” can be adequately measured or predicted with existing medical tests. In other words, Exxon claimed that these disqualifying traits cannot be ascertained except by looking at the pilot's age. Exxon put forth expert testimony in support of these propositions.

The district court granted summary judgment for Exxon. In so doing, it focused exclusively on the risk of sudden incapacitation. The court found that, based on expert testimony in the case, there still are no tests that can accurately predict whether an individual over a certain age will suddenly become incapacitated. The court did not address whether existing tests can predict a pilot's progressive decline over time.

Age as BFOQ

The case is now before the U.S. Court of Appeals for the Fifth Circuit (No. 13-10164). Regardless of how the Fifth Circuit rules, the decision will have important implications for the use of age as a BFOQ for physicians.

If the Fifth Circuit upholds Exxon's mandatory retirement rule but bases its decision solely on the risk of “sudden incapacitation” (as the district court did), the case would not provide significant support for age as a BFOQ for “cognitive” specialties such as family practitioners or psychiatrists. With such cognitive practitioners, there is little risk to a patient if a physician suffers a stroke or heart attack while treating the patient. But affirmance by the Fifth Circuit based solely on the risk of sudden incapacitation could be useful to hospitals that wish to use age as a BFOQ for surgeons and other “proceduralists.” The risk to patients of a surgeon suffering sudden incapacitation during spine or heart surgery seems analogous to the risk to passengers if a pilot suffers a heart attack.

The previous paragraph assumes that courts will analyze BFOQ cases based on the specialty of the physician. This would seem reasonable based on the Supreme Court's decision in Trans World Airlines v. Thurston, 469 U.S. 111 (1985), in which the court stated that a BFOQ must be analyzed with respect to the specific position of flight engineer, not generally to airline employees.

As the court stated: “In order to be permissible [as a BFOQ], the age-based discrimination must relate to a 'particular business.' Every court to consider the issue has assumed that the “particular business” to which the statute refers is the job from which the protected individual is excluded … TWA's discriminatory transfer policy is not permissible under §4(f)(1) [of the ADEA] because age is not a BFOQ for the 'particular’ position of flight engineer.”

Of course, the Fifth Circuit in Exxon may reverse the lower court. Depending on the court's rationale, such a decision could call into question the use of age as a BFOQ for any type of physician.

Conclusion

Stay tuned. Exxon was argued Feb. 6 so it should be decided soon. Also, given the growing population of employed, aging physicians and hospitals' increasing interest in developing age-based credentialing and peer review policies, litigation addressing these specific points cannot be far behind.

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