You may not have any disabled physicians on your medical staff currently, but that doesn't mean one won't apply tomorrow.
Technological advances that allow persons with disabilities to do more and a society that is more accepting of those with disabilities may result in an influx of physicians who require accommodations. In addition, the number of aging physicians on medical staffs is rising, and hospitals and medical staffs may be faced with issues such as Parkinson's disease, multiple sclerosis, Alzheimer's, and other degenerative diseases that worsen with age. To effectively manage the needs of disabled physicians, medical staffs should start putting together an action plan today.
The Americans with Disabilities Act (ADA) was designed to ensure that during the job application process and beyond, employers treat persons with disabilities in the same way they treat those who do not have disabilities.
"What the ADA does is attempt to ensure that you do not make employment decisions based on fear, ignorance, prejudice, or assumptions," says Robert Silverstein, Esq., principal at Powers Pyles Sutter & Verville, PC, in Washington, DC. The ADA does not attempt to give persons who have disabilities priority over those who do not; rather, it aims to ensure that individuals are judged on their qualifications.
Before medical staff leaders can even begin to put a plan in place for managing and supporting disabled physicians, they need to understand two terms used throughout the ADA:
Disability: The Social Security Administration, the ADA, and the World Health Organization have different definitions of this term. For the purposes of discussing physicians who are employees of a healthcare facility or who act as agents of that facility, it's best to rely on the ADA's definition:
Someone who has (A) physical or mental impairment that substantially limits one or more of the major life activities …(B) a record of such impairment; or (C) being regarded as having such an impairment.
- Sensory (e.g., deafness, blindness)
- Autoimmune or degenerative (e.g., multiple sclerosis, Parkinson's disease)
- Injury caused by trauma (e.g., car accident, fall)
- Developmental (e.g., disorders on the autism spectrum, dyslexia)
- Mental (e.g., depression)
Reasonable accommodation: Disabled individuals have a right to reasonable accommodations through their employers. According to www.ADA.gov:
A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.
The ADA doesn't spell out each and every accommodation possible. Rather, it describes reasonable accommodations through examples. Organizations are left to determine which accommodations are reasonable depending on their available resources.
"The key to looking at accommodations is to ask, ‘With the accommodation, can the person perform the essential functions of the job?' " says Silverstein.
FAQs on managing disabled physicians
With a generally litigious atmosphere in the healthcare sector, medical staffs and hospitals may wonder what they can and can't do when it comes to managing physicians with disabilities. Even medical staffs and hospitals with the best intentions may accidentally step over the line between legal and illegal. The following is a list of FAQs that will help keep your facility safe from a discrimination lawsuit.
A "The idea that a physician may be designated as an independent contractor or have an employment agreement stating so is not necessarily the final word on whether that physician is a ‘nonemployee' under the ADA," says Forrest Read IV, Esq., an attorney who specializes in employment law in the healthcare sector at Epstein Becker Green in Washington, DC. Rather, determining whether an individual is covered under the ADA involves an assessment of the arrangement between the individual (the independent physician) and the entity (the hospital). To be on the safe side, hospitals should always assume that an independent physician is covered under the ADA and may potentially bring an action under the employment title (Title I) or the public accommodations title (Title III) of the ADA.
Q Is the hospital administration or the medical staff responsible for accommodating physicians with disabilities?
A Accommodating physicians with disabilities is a shared responsibility. How that responsibility is divided depends on each hospital. In some hospitals, disabled physicians may be able to coordinate accommodations directly with the CEO or chief operating officer, whereas in other organizations, they may discuss these issues with their department chair, who then brings the issues to administration. The hospital is responsible for paying for and implementing most accommodations, such as adjustable operating tables and designated handicapped parking spaces. The medical staff is responsible for providing support to the disabled physician. For example, if a physician's disability requires a change to the on-call rotation because he or she cannot practice at night, medical staff leaders are responsible for ironing out those details and communicating the changes to the rest of the medical staff.
Q Does the medical staff need to include language protecting disabled physicians in the bylaws?
A It's not necessary to include specific language to protect disabled physicians in the medical staff bylaws because the ADA covers all the bases, says Linda Ford, CPCS, CPMSM, director of medical staff services at Dameron Hospital in Stockton, CA. In addition, a hospital's HR policy often covers disability issues for employed physicians.
However, spelling out how your medical staff will respond to requests for accommodations and evaluate the performance of disabled physicians will guide collegial conversations down the road should a physician become disabled or if an already existing disability worsens, says Wilma Hunt-Watts, DPM, a disabled Long Island-based podiatrist.
Q Which medical staff leaders or committees should be involved in assisting physicians with disabilities?
A Every hospital should have a physician health committee whose job includes advocating for disabled physicians and keeping tabs on their performance to ensure that a physician's diagnosis is not worsening. Although physician health committees were originally designed to assist physicians with addictions outside of the disciplinary process, the scope of the committee can be expanded to include disabled physicians.
"A lot of physicians have a hard time knowing when to quit. Ideally, that is where your physician health committee helps you make that decision," says Dean White, DDS, MS, a medical staff consultant in Granbury, TX. "We had to do that with an orthopedist. It became obvious to us, and finally to him, that he had to quit, but it took all of us to get there with him."
Whether your organization has a formal committee or manages disabled physicians on a case-by-case basis, it's important to have support available to disabled physicians. Nancy O'Brien, MD, a disabled physician who formerly practiced in Ottumwa, IA, suggests that medical staff members with disabilities develop a relationship with their medical staff president. "You are talking to another physician, and then you have someone who is going to be looking out for you," O'Brien says.
Q What kinds of accommodations might the hospital and medical staff consider providing?
A According to Jonathan H. Burroughs, MD, MBA, FACPE, CMSL, senior consultant at The Greeley Company, a division of HCPro, Inc., in Danvers, MA, common accommodations include:
- Enabling emergency medicine physicians in their 70s to work shorter day shifts instead of 12-hour night shifts
- Providing a stool in the operating room for individuals who can't stand for long periods of time
- Allowing diabetics time for regular meal breaks and glucose checks
- Providing radiologists who have early cataracts with special magnification lenses
For O'Brien, who was diagnosed with myasthenia gravis (an autoimmune disorder) in 2000, shorter days were the key to coping with her primary symptom: fatigue. She originally started working five three-quarter days, then five half days, then three half days, then two half days, then two three-hour days until she eventually left her practice. Because of that accommodation, O'Brien was able to continue working for 10 years after being diagnosed.
Hospitals and medical staffs may also have to consider providing dictation assistance to physicians with voice disorders, designated parking spaces for physicians in wheelchairs, and breaks for physicians or surgeons who have trouble standing for long periods. The medical staff may also need to consider relieving a physician of his or her responsibility to take call. For O'Brien, seeing patients at night became increasingly difficult as her disease progressed, and another physician had to take over for her.
Accommodations may go beyond an individual physician's day-to-day practice. During its many emergency practice drills, Dameron Hospital teaches every employee and provider in the hospital how to help their disabled colleagues exit the building safely during a disaster. "We have floor plans and know where the physicians who have disabilities are located," says Ford.
Q Is the hospital or medical staff allowed to ask physicians whether they are disabled during the application process so that we know what kinds of accommodations we may need to provide?
A Asking an applicant whether he or she is disabled is against the ADA because the applicant's answer may taint an organization's decision regarding his or her appointment and/or employment.
"What you should be asking is, ‘Can you perform the essential functions of the job with or without an accommodation?' " says Silverstein. "However, an employer cannot ask a question in a manner that requires the individual to disclose the need for an accommodation." In other words, organizations are allowed to ask if an applicant is qualified and can fulfill the responsibilities of the position regardless of whether he or she needs an accommodation.
Once the application process is complete and the hospital or medical staff has established a conditional offer of employment with the physician, the hospital can then ask more specific questions, such as "Do you need an accommodation?" explains Silverstein.
Although many physicians fear that they will not be able to join a medical staff due to their disability, they should be up front about their diagnoses and the accommodations they require, says O'Brien. "You should report things that affect your practice. I've met physicians who didn't report when they should have. They were afraid of losing their jobs, but it was also an ego thing. People who are physicians have a certain personality type that makes it hard to admit that they can't do everything they used to," O'Brien says.
When physicians present their diagnoses up front, the medical staff is empowered to help them continue doing what they love without jeopardizing patient safety.
Q How do we assess a disabled physician's competence without seeming biased?
A Ongoing professional practice evaluation (OPPE) and focused professional practice evaluation should alert you to any changes in a physician's performance, says Ford. Because OPPE regularly assesses each physician's ability to practice, there is no need to perform additional assessments for disabled physicians that the medical staff wouldn't require for nondisabled physicians.
However, the medical staff may require all disabled physicians to submit a letter from their personal physicians as part of the privileging process, says Ford. The letter from the private physician must attest to whether the individual is capable of continuing to practice the privileges that he or she has been granted.
"The medical staff just needs to know that there haven't been any changes and that they don't need to change the accommodations," Ford says.
If the letter from the disabled physician's personal physician indicates that the disabled physician is incapable of performing some or all of the privileges that he or she has been granted, it is time for the department chair, the president of the medical staff, or the physician health committee to step in and begin a discussion with the physician about alternate practice arrangements. For example, one option for physicians who can no longer practice is to teach residents, explains Hunt-Watts.
Q How does the hospital and medical staff decide what constitutes a reasonable accommodation?
A According to the ADA, a reasonable accommodation may include:
- "[M]aking existing facilities used by employees readily accessible to and usable by individuals with disabilities"
- "[J]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities"
According to Silverstein, the hospital is not required to provide personal use items, such as prosthetic limbs, eyeglasses, hearing aids, or wheelchairs. But the hospital must ensure that its facilities can accommodate an individual who uses such aids.
However, items that might otherwise be considered personal may be required as reasonable accommodations if they are specifically designed to meet job-related rather than personal needs. For example, a hospital may have to provide an individual who has a disabling visual impairment with eyeglasses that are specifically designed to enable him or her to use the office computer monitors but are not otherwise needed by the individual outside of the office.
One accommodation that many hospitals find unreasonable is allowing physicians to not take call. When a physician drops off the call schedule, it increases the burden for the other physicians on staff and may cause political strife within the organization. O'Brien knows of several disabled physicians who cannot take call because of their disabilities who were terminated from their medical staffs. Many medical staffs won't grant privileges to a physician if he or she can't take call.
"I think that is going to be the biggest thing to come to a head because a lot of physicians don't take call now anyway," O'Brien says, noting that the change in the way physicians practice (e.g., hospitalists) may eventually eliminate this requirement.
If your medical staff currently requires members to take call, you may need to rethink this requirement for disabled physicians. If taking call is a must, consider adjusting the amount of time physicians have to respond to call (many medical staffs require physicians to respond within 30 minutes). A wheelchair-bound physician may need a few extra minutes to get to the hospital.
"Just remember that this person isn't trying to get out of taking call; they are doing the best they can and they have a lot to offer," says O'Brien.
Hospitals and medical staffs that understand how to appropriately manage disabled physicians will not only avoid discrimination lawsuits, but they will also have a more satisfied staff that feels supported and appreciated.