Neuropsychological Exams for Physicians: Good Practice or Discrimination?
Loyola University Chicago School of Law, JD 2024
Recent instances of politicians experiencing medical episodes in the public eye have sparked discussions regarding age limits for politicians. However, a parallel conversation is emerging about the healthcare professionals responsible for our well-being. About four years ago, a small number of health care institutions began implementing various forms of neuropsychological testing policies for older physicians. Since then – over the past few years – this practice has continued to grow and become increasingly controversial. The ongoing debate centers around determining the appropriate age to commence testing for physicians, the specific parameters to test for, and the ethics of mandating such testing. These questions remain subjects of ongoing debate, yet considering the rising demographic of physicians over the age of 60, there is a growing argument for integrating some form of neuropsychological examination.
What is the basis for the introduction of cognitive testing policies?
The number of licensed physicians in the U.S. aged 60 years and older has increased by 54% since 2010. An estimated 50 to 70 million office visits and 11 to 20 million hospitalizations each year are overseen by physicians aged 65 or older. As the health care field continues to experience a severe workforce shortage, these trends will likely to continue as physicians remain in practice longer due to increasing demand for their services. Studies regarding the relationship between physician age and patient outcomes have been inconclusive, but it is necessary to point out that no national standard for physician competency exists. Hence, it is imperative that providers take proactive measures to identify areas of risk that necessitate additional safeguards. Yale New Haven Hospital (YNHH) has provided an outline of one such way that may be accomplished.
What does the testing process look like?
The testing conducted at YNHH, involved assessing 125 physicians aged 70 or older seeking staff privileges. The results showed that 57.4% scored within the normal range, and 24.1% proceeded with the credentialing process, albeit scheduled for retesting the following year due to minor abnormalities. Five percent exhibited limitations in memory, executive function (working memory, flexible thinking, self-control, etc.), processing speed, or constructional skills. Additionally, 13.4% had decrements in detail analysis, visual analysis, delayed recall of newly acquired information, information processing speed, impulse control, visual scanning, and psychomotor efficiency.
Out of the clinicians with cognitive defects, 12 physicians were closely monitored in a proctored setting or chose to retire. The remaining seven practitioners were asked to undergo further cognitive evaluation, leading to three clinicians being asked to limit their practice or retire. Notably, none of the 18 clinicians displaying cognitive defects had previously been reported to hospital administration for performance-related issues.
Jeffrey Saver, a physician at UCLA, opined that “because of confidentiality, impaired testing performance cannot be correlated with poor medical practice.” However, despite the limitations, the policy does exhibit preventative benefits when executed properly. YNHH’s observation that physicians displaying cognitive defects had no prior reports of performance-related issues underscores the potential of testing to identify cognitive deterioration, providing medical leadership with vital information to instigate proper cautionary measures and necessary safeguards, ultimately mitigating negative patient outcomes. In essence, cognitive testing policies can empower providers to implement appropriate safeguards, contributing to an overall enhancement in healthcare quality.
Is required testing discriminatory?
The question of whether required testing is discriminatory has lingered, hindering the swift implementation of cognitive testing policies, hindering the swift implementation of cognitive testing polices. The process has been slow, as uncertainties persist regarding the legal aspects of enforcement.. In 2020, the United States Equal Opportunity Commission (EEOC) filed a lawsuit against Yale New Haven Hospital alleging that their “Late Career Practitioner Policy” (the same policy described above), which requires medical practitioners aged 70 or older to undergo neuropsychological and ophthalmological testing upon appointment or re-appointment to the medical staff, violates the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). The EEOC argues that such policies violate the statutes by requiring testing solely based on age and that the testing is not job-related or consistent with a business necessity. The hospital, however, contends that these tests are crucial for patient safety and reducing medical errors.
As the legal case unfolds and is likely to progress to appeals, it will be some time before providers receive judicial guidance on the viability of such mandatory policies. Nevertheless, the final decision is anticipated to significantly influence providers’ choices regarding the implementation of these policies in the future.
In the meantime, what should providers do to protect patients?
Amidst the absence of clear judicial guidance on this issue, it is crucial to highlight the specifics of EEOC v. YNHH, wherein the case revolves around a mandatory testing policy for practitioners. The core of the EEOC’s claims rests on the premise that physicians aged 70 and above face disparate treatment by being obliged to undergo testing for staff privileges, unlike their counterparts under 70. This distinction is pivotal, indicating that policies allowing for voluntarysubmission to testing would be appropriate as it does not condition one’s employment on undergoing testing. As such, providers should feel secure in developing voluntary testing policies. Not only can this serve as a preventative safeguard, but it also is another layer of protection that providers may have in their back pocket to reference during litigation involving claims such as negligent credentialing.
In essence, cognitive testing policies undeniably hold beneficial value, particularly when employing suitable testing tools. Providers can anticipate forthcoming guidance on this matter, potentially offering clarity on navigating the delicate balance between professional dignity and patient safety.