In the U.S., one out of eight practicing physicians is older than sixty-five, and many practice well into their seventies. Many commentators and healthcare organizations, concerned that aging physicians are at risk for cognitive impairment, have urged, or actually instituted, cognitive "screening" for older physicians as a means to ensure patient safety. An age-based screening program, however, should not proceed unless supported by clear evidence and not prohibited by law.
This article argues that neither of these conditions applies. Singling out all older physicians for cognitive testing is empirically unjustified and legally prohibited. Furthermore, there are other means to reliably monitor and identify physicians, both older and younger, who pose risk to patients. Legally, two federal statutes prohibit age-based screening. According to the Age Discrimination in Employment Act of 1967 (the "ADEA"), age-based screening constitutes prohibited discrimination because it is based on unsupported stereotyping about age and imposes a burden on one set of employees while overlooking others. According to the Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008 (collectively, the "ADA"), age-based screening constitutes prohibited discrimination because an employer is only permitted to require medical examination when it has reasonable belief that an individual has a condition that could interfere with job performance or the individual poses direct threat to others. The consequence of both these statutes is that hospitals cannot go on a "fishing expedition" and conduct en masse screening of their older medical staff; they can only examine those whom they have reason to believe may be impaired or otherwise dysfunctional. The article concludes by discussing processes and methodologies that facilitate identification of physicians of any age who may warrant further assessment. By enabling hospitals to identify physicians of all ages who pose risk to patient safety in a way that aligns with the principles of the ADEA and ADA, they can strike the appropriate balance between fostering patient safety and not discriminating against one physician demographic.
INTRODUCTION I. AGE NOT A VALID BASIS FOR IMPOSING TESTING ON PHYSICIANS A. Effects of Aging on Cognitive Function B. Evidence that Late-Career Physicians Function Well C. Limitations of Studies Cited as Evidence of the Need for Age-Based Testing 1. Concept Conflation 2. Lack of Age Stratification 3. Non-Age-Related Sources of Impairment II. JUSTIFYING THE BURDENS AND COSTS OF AGE-BASED COGNITIVE SCREENING III. THE ILLEGALITY OF AGE-BASED COGNITIVE SCREENING PROGRAMS FOR PHYSICIANS A. Age-Related Cognitive Screening Violates the ADEA 1. The ADEA Prohibits Disparate Treatment on the Basis of Age 2. Age-Related Testing Constitutes Disparate Treatment 3. Employers Cannot Assert Any Valid Defense a. The Defense that Age-Based Screening is not Disparate Treatment is Invalid b. The Reasonable Factor Other than Age (RFOA) Defense is Unavailable c. The Bona Fide Occupational Qualification ("BFOQ") Defense is Unavailable d. Analogy to Statutory Exceptions for Public Safety Officers and Airline Pilots is Inapplicable B. Age-Related Screening and the ADA 1. ADA Prohibitions 2. The "Job-Related and Consistent with Business Necessity" Defense C. Physician Employee Status for Purposes of the ADEA and ADA IV. ALTERNATIVE MODELS FOR IDENTIFYING AND RESPONDING TO SUSPECTED COGNITIVE IMPAIRMENT A. Existing Standards for Addressing Physicians with Behavior and/or Performance Issues 1. Ethical Duties 2. The Joint Commission Standards B. Implementing Methods for Detecting and Addressing Impaired Physicians C. The Challenge of Providing Reasonable Accommodations for Cognitive Impairment V. CONCLUSIONS INTRODUCTION
The U.S. health care system relies heavily on older physicians. Currently, one of eight practicing physicians is older than sixty-five, the traditional age of retirement. (1) Some practice well into their seventies or beyond. (2) Many commentators and health care organizations find this trend concerning and have urged or instituted, (3) cognitive "screening" for older physicians. Their argument is rooted in a perception that aging physicians threaten patient safety. (4) This perception springs from several sources. One is the increasing prevalence of cognitive impairment with age in the general population, (5) leading to the concern that some older physicians are affected but undiagnosed. (6) Another is the belief that members of the medical community sometimes fail to intervene in cases of observed impairment.7 Moreover, screening proponents advocate for the profession to take action so that others outside the profession do not do it for them. (8)
Despite the impetus to do so, healthcare organizations should not institute an age-based cognitive screening program unless certain conditions are satisfied. These conditions are that clear evidence supports the rationale for the program and that the program is not legally prohibited. This Article argues that neither condition is currently met.
Part I of this Article argues that the evidence does not support the need for across-the-board age-based cognitive screening of late-career physicians. Part II argues that such screening is not justified because of screening tool limitations, risk of misdetection and misinterpretation, and insufficient data regarding costs, benefits, harms, and cost-effectiveness of such programs. Part III argues that two federal statutes prohibit age-based screening. Under the Age Discrimination in Employment Act of 1967 (9) (the "ADEA"), such screening is unlawful discrimination because it imposes burdens on older physicians on the basis of age. Under the Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008 (ADAAA) (10) (collectively, the "ADA"), age-based screening is prohibited discrimination because it constitutes an inquiry and examination without cause and violates the requirements of the "business necessity" exception. This section also argues that even if the hospital does not directly employ the physician, the hospital is the "employer" for purposes of the ADEA and the ADA and must comply with their requirements. Finally, Part IV suggests alternative methodologies for identifying physicians who pose a risk to patient safety. It argues that existing common-law doctrines and private and public regulations provide the incentives, authority, and framework for hospital leaders and medical staff to use nondiscriminatory methods and processes to identify impaired physicians, regardless of age. These methodologies and processes align with the principles of the ADEA and the ADA, thereby striking an appropriate balance between promoting patient safety and treating physician employees in a fair, equitable, and legally authorized manner.
AGE NOT A VALID BASIS FOR IMPOSING TESTING ON PHYSICIANS
Twenty-nine percent (29%) of the one million licensed physicians are sixty or older. (11) While not all licensees are engaged in active practice, 111,000 physicians sixty-five or older account for 12 percent of all physicians delivering patient care. (12) Physicians are also retiring later. The mean retirement age was 63.3 in 2005, but by 2014 increased to 67.7 years. (13) Furthermore, the number of actively practicing physicians sixty and older increased 30 percent between 2010 and 2016, while the number of physicians forty-nine or younger increased by only 10 percent. (14)
The fact that many physicians continue practicing beyond the traditional retirement age comes at an opportune time because the U.S. faces a physician shortage within the next decade. (15) Estimates of the deficit are that it will reach 61,700 to 94,700 physicians by 2025. (16) However, there are countervailing concerns that older physicians may have deficiencies in the neuropsychological functions required to practice competently. Such functions include verbal problem-solving, visual-spatial problem-solving, learning and memory, verbal fluency, attention, and mental tracking. (17) Because availability and quality of care are both critical public goals, these concerns must be addressed.
If a plausible argument is to be made for screening a specific population for cognitive impairment, the evidence should carefully demonstrate the necessity of such screening. Policymakers and healthcare leaders must base decision-making on accurate information so they may properly balance the benefits, risks, and costs of such a program. Failure to do so does a disservice to the targeted group and shifts attention away from other opportunities to improve quality and safety. (18)
Those seeking to screen late-career physicians and devote resources must demonstrate that this group of physicians presents sufficient risk to patient safety to warrant proceeding. It is therefore necessary to examine the evidence regarding the relationship between physician age and physician performance.
Effects of Aging on Cognitive Function
Normal aging is typically accompanied by changes in physical and cognitive function. Physical changes include decline in oxygen consumption rates, kidney function, and cardiovascular function. (19) Using the MicroCog Assessment of Cognitive Functioning (20) to evaluate cognition with aging, Powell demonstrated that reasoning, visuospatial ability, and memory and reasoning decline before attention and calculation skills. (21) Mean performance scores for language, visual-spatial recognition, reasoning, and attention show a sharper decline after age 65. (22) The magnitude of these changes, however, becomes increasingly variable with each decade. Benton, for example, found that one-third of octogenarians performed as well as a group of younger adults on nine separate cognitive tests. (23) Overall MicroCog scores for a group of seventy-year olds were lower than scores for a group of forty-year...