Where Do We Go from Here?
Many physicians choose to work past retirement age, providing valuable knowledge and advanced skills, and employers increasingly focus on ensuring these physicians are both physically and mentally fit to provide safe and high-quality care. The challenge for employers is to make sure they are adopting policies that don’t run afoul of the ADEA or ADA. A court is more likely to find testing for a particular specialty (e.g., fine motor-skill tests for surgeons) to be legitimate when such tests are evidence based and not subject to arbitrary interpretation or based on age alone.
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In 2018, the AMA’s council on assessing competency of senior, or late-career physicians failed to gain adoption of a set of guidelines for age-based competency testing. Many physicians objected to this action, concerned that it could be used to unfairly force out or inadvertently remove certain aged physicians from practicing, ultimately worsening the existing physician shortage. Additional feedback from medical professionals notes that aging is nuanced and highly varied. As such, ageism fails to account for early-onset dementia in middle-aged physicians or for senior physicians who practice well beyond age 70 with cognitive sharpness that rivals younger colleagues.
Age screening examples modeled by healthcare institutions show very different approaches and suggest there is no one-size-fits-all answer. The Stanford Health Care System, Calif., uses a peer review method, while others opt for a combination of tests for providers at varying age thresholds. The continuing concern with age threshold tests points to the example of Yale’s false positive physician cognitive test results, requiring further evaluation and exposing the risk of unfairly excluding advanced physicians who offer valuable skills and medical judgment.1,2
Although physicians in some states or at certain institutions may be required to undergo age-based screening exams, they should take steps to ensure these tests are based on objective criteria, lean on patient outcomes and performance data, and question whether screenings are an objective test of cognitive ability and not just solely related to age.
Meanwhile, the medical and legal communities continue to look to the courts for new precedent and to medical governing bodies across the states for more uniform standards.
Steven M. Harris, Esq., is a nationally recognized healthcare attorney with McDonald Hopkins LLC. Contact him at firstname.lastname@example.org.
- Armstrong KA, Reynolds EE. Opportunities and challenges in valuing and evaluating aging physicians. JAMA. 2020 Jan 14; 323(2):125–126.
- Cooney L, Balcezak T. Cognitive testing of older clinicians prior to recredentialing. JAMA. 2020 Jan 14;323(2):179–180.