Good morning, everyone. Wow, day, what is it, day three that we're on? People are bright-eyed and bushy-tailed. We've had coffee, we've had conversation, and we're ready for more. Thank you for joining us today. I'm Melanie Swift, and I'm from the Mayo Clinic Rochester, and I'm moderating this panel today, and I'm going to be introducing our speakers and introducing a briefcase. None of the faculty today have any conflicts of interest to disclose. Our speakers today include Caitlin Brown, who is a trial attorney with the Equal Employment Opportunity Commission, who has come here from Washington to speak with us today. She is also lead counsel for a case that is not yet concluded, EEOC versus Yale University. Our second speaker, Howard Rudnick, whom many of you know as one of our ACOM colleagues, is clinical professor, adjunct in the Department of Medicine at Temple University, and medical director of occupational health services at Temple University Health System, who will speak second, and then our third speaker, one of my dear colleagues at the Mayo Clinic in Rochester, Dr. Greg Couser, who is assistant professor of both medicine and psychiatry, and a board-certified occupational physician who practices in our department at Mayo Clinic. Here's a case. This is a case that came to me as director of our physician health center as a request for an outside entity needing an evaluation. It actually came from the physician himself, 70-year-old internist who referred himself because my hospital requests that I have an evaluation, cognitive evaluation. Based on a policy for recredentialing that requires a, quote, unquote, unspecified cognitive assessment for all physicians age 70 or older, there had been no concerns identified about this physician's performance, none by the employer, no complaints to the board, no complaints or concerns by patients, no concerns raised by colleagues or family members. This was a routine screen request, and he had literally no idea what he was expected to do, but he sought to get that objectively and thoroughly and confidentially, and he asked to come to the Mayo Clinic. I spoke with him, and he said, as years go by, you know, I do admit it's not as easy for me to remember things, people's names, they come to me later after the conversation at home. Sometimes I walk into a room, and I've forgotten why I came in this room. My wife says she does that, too, and it was really hard for me when we changed to a new EMR. I struggled with that. I do think it takes me longer to finish my notes now that I can't use dictation, but I just want to be sure that I'm doing the right thing, and my hospital wants us all to be tested. His medical history was significant for hypertension, osteoarthritis, physical exam was unremarkable. Now, in this audience, all of you have different roles. I'm not so good with doing the tech-savvy poll everywhere stuff, so if you'll indulge me, I'd like to do an old-fashioned raise your hand poll, and we are not going to have to count this, okay? Raise your hand if, in your organization, you are in a position of advising on issues like policies such as this. Oh, I'm so happy that you are here. Raise your hand if, outside your organization, you are in a position of administering a cognitive screening program. Some more hands for us, okay. And thirdly, raise your hand if you, in your practice, are ever asked questions like this. Can you evaluate me cognitively for my employer? Wow. Well, you are in the right place, and so are we. One last poll. As you look, put yourself in that third role, for those of you who raised your hands. Now, you are in the exam room doing this evaluation at the request of another employer, not your own, not your policy, right? What would you do next? So our options are going to be, and you can pick more than one of these if you like. You may also not pick any of them. I'd like to sort of see where people are thinking right now. Would you do some sort of office-based cognitive screen, like a MOCA, or Minimunal Status, a Cochman, something like that? Would you do some brain imaging to look at atrophy, something, or any signals there? Would you order formal neuropsychological testing? So raise your hand if you would do a cognitive screen in the office. Looks like a majority, okay. Raise your hand if you would order a brain CT or an MRI. A few more hands. Raise your hand if you would order formal neuropsychological testing. Okay. Well, you guys are also in the right room. Good. So that is the wheelhouse we're in. This is the question that we are here to hopefully arrive at a deeper level of understanding on today. So at this point, I'll ask Ms. Brown to come to the mic and tell us from the EEO perspective how they approach this. Thank you so much, Melanie. So I'm going to talk about the legal considerations today that you might want to be thinking about if you're asked to do testing like this, particularly on a policy basis. As Melanie mentioned, I am lead counsel on EEOC versus Yale New Haven Hospital. That's a litigation that we have brought in connection with their late career practitioner program, which requires that all practitioners age 70 or up undergo at least biannual neuropsychological and ophthalmological exams. And so that's kind of my familiarity with this area. Now just talking about legal considerations, when we're talking about an age-based policy like this, there's two laws that we want to consider. One is the Age Discrimination in Employment Act, and the other is the Americans with Disabilities Act. The age discrimination is probably more obvious to everyone if this is an age-based policy. The Americans with Disabilities Act comes into play with the question of, is this a medical exam that you're requiring of employees to continue their employment? Now I can't opine today on whether or not any particular program is legal or not legal, so I won't be able to tell you, you know, is the program at your facility legal, because to do so we have to have an EEOC investigation and then make that determination, but I can tell you about the legal framework you should be considering in questions that you might want to ask yourself or those who are kind of encouraging the use of these policies when deciding to implement one. And I'll only be discussing federal laws today. There might be state or local laws that also should be considered based on your jurisdiction, but I'm also just focusing on federal laws. And similar about I can't tell you if something is legal or illegal, I can't provide legal advice today, so if you have a question about your very specific situation, it's best to contact an attorney directly. Now first we're going to talk about the Age Discrimination in Employment Act. And I just wanted to start with, you know, a few notes on people in the aging workforce from those who are much smarter than I am. To start, the Supreme Court in a case in 1985 said that throughout the legislative history of the ADEA, one empirical fact is repeatedly emphasized. The process of psychological and physiological degeneration caused by aging varies with each individual. And the AMA also reviewed the topic of aging physicians. And in their findings, they aligned with the Supreme Court. They said that research suggests that the effect of age on an individual physician's competency can be highly variable. And because there are those wide variations in cognitive performance with age, age alone should not be a precipitating factor for assessing a physician's competence. You know, I have heard certain medical professionals assert that cognitive decline is inevitable with aging, and that all aging comes with cognitive decline. And you know, there are certain studies that are widely cited, too, such as chowdhury. You know, I'd encourage you to dig into those studies and look at the underlying studies, look at the populations that were looked at, because, you know, it's actually not as clear that it supports that. And more often, what they see and what, you know, some of our experts has discussed is that you see a group that's aging well and a group that's aging not as well. So an assumption that everyone is going to experience cognitive decline, you know, I think you would want to dig into the research before assuming that's true. Now the other, and then continuing with the Age Discrimination Employment Act, the Supreme Court and also the First Circuit Court of Appeals, which is in the Northeast, because of these issues, because there's variation in cognitive decline with aging, they've said that using age as a criteria for decline and unfitness for employment strikes at the heart of the ADEA. And the Supreme Court says that instead, the ADEA commands that employers are to evaluate older employees on their merits and not just on their age. And when we're talking about statistics generalizations about, you know, on average, is there cognitive decline with age, the Supreme Court addressed a very similar question with respect to sex. In this case, City of Los Angeles, Department of Water and Power versus Manhart, there was an employer that required higher pension contributions from women based on a generalization that the party has accepted as unquestionably true, that women as a class do live longer than men. However, the Supreme Court noted that all individuals in those respective classes do not share the characteristic that differentiates the average class representatives. And so even if there's true generalization about the class, it's an insufficient reason for discriminating against an individual. Now let's look at the text of the ADEA, what it actually requires and how it comes into play here. So the Age Discrimination and Employment Act says it's unlawful for an employer to discriminate against an individual with respect to their terms, conditions, or privileges of employment because of such individual's age. But there is an exception here where it's not unlawful for an employer to take action otherwise prohibited where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business. And we're going to break down that exception in just a minute. And in the EEOC's view and how we've applied it against Yale, if you're saying that in order to practice at the hospital, in order to keep working at the hospital, you're required to undergo and pass these medical exams, then you're imposing additional conditions of employment. You know, it might differ based on the specific situation. But for the purposes of this presentation, we're going to consider that the practitioners are considered employees. Now the other law that we're talking about is the Americans with Disabilities Act. And this is the prohibited examinations. So the covered entity shall not require a medical examination, continues inquiries as to whether or not an employee is an individual with disability or the nature and severity of the disability unless such examination or inquiry is shown to be job related and consistent with business necessity. So that's the exception that is possible under the Americans with Disabilities Act. And so whether or not you're conducting an unlawful medical exam, it'll depend on the timing as far as if they're a current employee, if they're a new employee. But it will turn on whether or not the exam that's being performed is able to determine the nature and severity of a disability. So if it's a cognitive exam that could determine if someone is having impairments in their intellectual functioning, then that very well may be considered to be a medical exam under the ADA. Now let's just look at these affirmative defenses. So the required proof to meet the defenses under the two laws has a lot of overlap. So we're just going to talk about them together. So the ADA, the first prong if you're trying to prove that affirmative defense is to show the policy is reasonably necessary to the normal operation of the particular business. And under the ADA, you have to show that the policy is consistent with business necessity. And now some questions that you might want to ask yourself when you're trying to determine is this policy reasonably necessary to the normal operation of the business? You know, for example, a hospital, a medical practice. Did the hospital or practice operate normally without the policy before it was implemented? Has the policy ever been paused? Are there exceptions granted to the policy? And when those exceptions are granted, when the policy is not in effect, is the institution still operating normally? As far as if it's consistent with business necessity, is there evidence that older practitioners are causing more harm than younger practitioners? Is it really necessary and consistent with business necessity in order to continue the operations of the facility? And is the hospital also applying this policy in a consistent way, not giving any exceptions? And so we need to look that it's a business necessity. It can't simply be convenient. It needs to be necessary. Now for the next prong, you have to establish under the ADA that the medical exams are job related and no broader or more intrusive than necessary. So there's slight differences in circuit law across the country on interpretation of this, but under the Second Circuit, which covers New York, Vermont, Connecticut, they say that it has to be a narrowly tailored inquiry into the employee's ability to carry out their job related functions. And so if a hospital is asking you to prepare a screening exam that's going to apply to all practitioners, regardless of their specialty, you need to ask yourself, am I creating a narrowly tailored inquiry into the ability of a person to carry out their actual job? So questions you might want to consider are, if your exam includes an ophthalmological exam, is that really necessary for the performance of, for example, a psychologist's job? If your screening includes tests of fine motor control, is that necessary for every practitioner at a hospital? And the standards that you're going to use to determine whether or not a person passes this exam, are you being asked to use the same standards for all practitioners, regardless of specialty? For example, does a pathologist need the same level of fine motor control as a cardiac surgeon or a neurosurgeon? We need to have the connection between performance on the exam and performance on the job. So ask yourself, is there evidence, or we believe we can quickly establish evidence that people who perform poorly on this exam are also performing poorly on the job. And how confident are you that if a practitioner displays impairments on the exam, are they also going to display impairments on the job? And so if this exam is conducted, and then the next step is necessarily, well, we have to conduct a job observation anyway to determine if these impairments are showing up on the job, you might question why is it necessary to first do the cognitive exam, instead of just simply first observing them on the job and seeing are there actually on the job concerns? Now under both the ADA and the ADEA, if the goal of the policy is public safety, then the employer facility implementing this policy has to prove that the challenged practice does indeed effectuate that goal. And for the ADEA, at least under Second Circuit law, they say that the policy, they must demonstrate that the policy actually effects its purpose, and that the examination as to whether a policy actually contributes to the business necessity is vital. And so, you know, there's a question of does the hospital have evidence that the policy impacted public safety, or more specifically patient safety, in a positive way? And you know, you might be familiar with the Plan, Do, Study, Act method in medicine. And so this is similar to, if you're implementing this policy, then saying, you know, how are we measuring if it's actually having a positive effect, whereas, you know, we've seen some of our litigation that people, you know, valuable practitioners are retiring because of these policies. And so, you know, is there an actual positive effect to these policies, particularly one that's going to outweigh the possible loss of valuable medical practitioners? Now finally, you also have to show under the ADEA that to justify having a policy like this, that there's either a factual basis for believing that all or substantially all practitioners age 70 or older, or whatever age is being used, would be unable to perform safely and efficiently the duties of the job involved. That's not usually what we're seeing. Or they have to show that it's impossible or highly practical to deal with the older employees on an individualized basis. And if it's based on public safety, we talked about a minute ago, they also have to show that there's no acceptable alternative that would better advance or equally advance the goal with less discriminatory impact. So the question here is, if you're looking at, you know, dealing with employees on an individualized basis, the question, how are you determining and looking at impairment for individuals and practitioners under the age of 70? So are you looking at EMR metrics? Do you have, are you relying on OPPE, peer review, patient complaints, staff complaints and concerns, a number of metrics? Are you using comparative metrics? And so why is it that if someone is under the certain age, those are acceptable metrics, but over the certain age, they're not? So assess, you know, is there evidence to support the need for a differential approach simply based on age? And also looking at, for example, how is the facility detecting impairments that might not be due to age? For example, if practitioners have substance abuse issues or mental health issues, you know, is it, is the facility considering it necessary to affirmatively screen for those issues as well? If they believe that they could have an impact on patient safety, you know, if the answer is no, then it's, you know, just a question raised of why is the treatment of age, you know, different from those other risks? And should those risks be treated similarly? So, you know, if you're asked to impose or develop a policy like this, an age-based testing policy, I just, you know, ask you to consider asking yourself or those who are endorsing or advocating such a policy, you know, is this policy really necessary for the normal operation of the facility? Is it justified by evidence that older practitioners are causing more harm? Is there evidence that the ways that we detect impairment for those under age 70, those will not work for those over age 70? And is the screening used and the standards to pass the screening tailored to the job of each practitioner to be examined? And finally, how will you know if the policy is actually achieving its goal or having a positive impact? So what metrics are you going to use to determine that? So, thank you very much. I will turn it over to our Good morning. Temple University Hospital with Temple University Health System has five constituent hospitals and our department manages the occupational health for all of those individual campuses. A number of years ago, a newspaper reporter approached Temple University administration asking what program we had in place to ensure that all the physicians are practicing safely. That started a flurry of discussions in administration and it also involved the credentials committee, which I'm a member of, as well as the medical executive committee. We were basically told to develop a late career practitioner evaluation program. It was a vague request and it was delegated to me from the credentials committee. Really, I think it was political more than anything else that pushed this into existence. Now, we had a lot of concerns. When I say we, it's myself, the neuropsychologist at our institution, the chief medical officer. We felt that this age based of that requirement was discrimination and it was focusing on age rather than performance. We in healthcare have loads of things which we monitor regularly to assess our physician's performance. There would be no objection if there was a performance issue of people being sent to our department for fitness for duty. There was a lack of normative data for physicians. How do you interpret the data? Our neuropsychologist certainly felt that she could not adequately interpret the data for this population of people. In terms of confidentiality, who owns the data? How is it being handled? It is privileged information and so that there would be a very select group of people within our institution who would have access to the information, including the credentials committee chair. Not even the full credentials committee initially, the chair of the credentials committee myself and the chief medical officer, possibly the dean. We were concerned about litigation and I have to say just, I would say eight months, nine months ago, I'd been following the case against Yale for pretty . . . as closely as I can and I contacted our chief counsel and said I thought that what we were doing was not appropriate from a legal or fairness standpoint. He called the attorney for Yale and got back to me and said Yale felt very strongly they want to litigate the issue. It's my hope that Caitlin and the case with Yale will really define what health systems can and cannot do in this regard. Diversity issues come up and again, the issue of performing the neuropsychological testing. Our neuropsychologist was adamant that she would not do that testing under these circumstances. We've had numerous academic institutions in the region come to us and ask us if we would do the assessment and we said no. Keep in mind that my approach to someone for a physician who was sent for a fitness for duty would be very different. I would take a history and physical and I would individualize the evaluation that was appropriate for the person's complaint, not this age-based approach. What is a late career practitioner? At Temple University Health Systems, it does vary from institution to institution. At our institution, anyone age 74 and a half or older who applies for an initial appointment to the medical staff or any practitioner who's 75 years or older who is currently on the medical staff, including nurse practitioners and physician's assistant. Currently, we have 14 physicians who meet those criteria. I will just say from an anecdotal standpoint that it's some of the most inspiring people I've met. You have an older physician who comes in raving about their grants. I've not had on one of those persons a complaint or concern from their section chief, division chief or chairs about their performance and I view them as positively a credit to our profession and very useful to our younger colleagues to see physicians at that age and that stage in their career enthusiastic and still practicing medicine. In terms of using these tests to decide whether someone is safe or not safe or can or cannot perform their jobs safely and effectively, these tests and this approach lacks the sensitivity and specificity. What was the theoretical objectives of our evaluation? Provide patients with medical care, high quality and safety that protects them from harm. None of us would disagree with that. The question is, does this program do that? I would put forth and say it does not. Having a discussion for a division chief or a chair to have a discussion with a senior colleague about performance is a difficult conversation. The American College of Surgeons, for example, keeps pushing to have this program put in place, but on the other hand, that takes away the heat from the people who really are in the position to assess whether this individual is or is not performing at an acceptable level. Again, if they are, if there is some reason to think that they are not, we're happy to see them and individualize our evaluation of that individual. The issue of identifying issues that may be pertinent to the health and clinical practice of medical staff members, unless it directly reflects in the job performance, it is none of our business. It's just that simple. If they want to come to us and get a consultation themselves, we're happy to do that, but if what they're doing, if their job performance is not in question, whether they have a medical problem or don't have a medical problem is purely none of our business. To support the members of the medical staff, I'm not so sure. Supporting the medical staff would be making our services available if they choose to use it, not forcing them to do it for no apparent reason. Certainly, whatever we have decided to do, our goal is to provide an objective, equitable, respectful, and confidential approach. I can tell you, when people, and this I've told, my colleagues and I have discussed this, we have a standard way, I said, I don't want any of these older colleagues to go out of our department with anxiety. They come in, even from year to year, you can see, they may have had the test three years in a row and they're nervous, what if I don't pass this test? You can feel the anxiety. The paperwork we do, we show them, we fill it out in their presence and we show them what we're going to fax to the medical staff office. We make sure that they leave the office without worrying about what we found or what we're going to say. I mentioned we had 14 people who meet this criteria. They have the ability to have the evaluation done by our service, a family physician, but all 14 have chosen to have their evaluation done in our department. I think in part it's because we went to a lot of extremes to try and reassure them that we're not there to harm them and to make it clear to them what we're doing as crystal clear as we possibly can. Again, if we need other specialists, we have the availability of neuropsychologists and neurologists and ophthalmologists, and if we deemed it appropriate or necessary to get those people involved, we would certainly do that. We would order whatever test would be appropriate for that individual practitioner. What are the components of our evaluation? First we start out and do a comprehensive history and physical exam, very much similar to our pre-employment physical. We use the same history form, we use the same physical exam form. We do a fairly comprehensive H&P. I have to say one of my goals in the cognitive screening was to take the simplest test I could find that I could argue was cognitive screening, but caused the least degree of stress in our colleagues. I decided on a mini mental status examination, and trust me when I tell you, I understand the limitations of that simple test for this purpose. Most physicians know what the mini mental status exam is, and most of them can think about what it means, and if they know they're going to have it, they can think about, you know, spelling words backwards and, you know, serial sevens. Again, the test and evaluations by specialists is deemed necessary, or if requested by the physician. And we also do take into account that we do have access to the clinical performance evaluations. What about other programs that have late career practitioner programs? The ages vary from 74 and a half to 75. Many include neuropsychological testing. Some include a comprehensive ophthalmological exam. One used a functional capacity evaluation. None use surgical simulators to test the surgeon's practical skills. And just as a sideline, I had an issue about two years ago of a very prominent surgeon who had a brain tumor, and she wanted to come back into practice, and they said you had to be cleared by occupational health. So I approached our clinical simulations people, and the answer is no, we're not doing it, but we have a high liability. If we say someone is capable of doing surgery and there's no good protocols for us, that contrasts the program at Mayo, and I would say to you that I, in my own institution, if I needed to have someone assessed in terms of a surgical simulation lab, I would send them to Mayo. Luckily for me, this physician decided she only wanted to see people in the clinic and really didn't want to go back and do surgery, so that made it easier. We have two simple forms. One is literally two pages. One says history and physical, the other says cognitive evaluation. And basically you say I completed a history and physical on this individual, and I do not recommend any further testing, and I can find no basically barriers to this physician performing their duties. And a similar simple piece of paper on the cognitive screening, and we faxed that, again, I show that to that individual before they leave the office, and I faxed that to the medical staff office, and in order for them to get their privileges, they need to have that done every two years. Well, what happens if we do find concern? This is considered peer protected. Again, as I mentioned to you, the people that would have access to this information and would be discussing it would be the leadership in their department, the chair of the credentials committee, myself in occupational health, and obviously the results would be reviewed with the practitioner. If there were recommendations made to modify their privileges or limit their privileges, that would be presented to the medical executive committee, and in accordance with their hospital bylaws, that individual could request a hearing if they thought it was necessary. So I will then hand this over to Greg Couser. Thank you, Howard. Good morning, everybody. It's so nice to be able to see so many colleagues. I'm very privileged in my work to be able to work with all of you and some great people, of course, at Mayo Clinic, like Dr. Swift, who has so many different presentations going on right now and doing this, to one of my friends up towards the front from the University of Iowa, Nate Brady. It's just so nice to come here and see everybody along that line. On the other hand, there's the whole psychiatrist part of me. Why you're asking a psychiatrist to talk about anything practical is beyond reason from my standpoint, but I'll do the best that I can. So practical considerations, and I'm going to piggyback, I guess, a bit on what Howard said. He did such a nice job talking about what specifically he does. So in thinking about it, I'm actually a downstream practitioner more often than not, and I'm privileged in seeing a lot of physicians in my practice, which is a lot of fun to do, but it's from that view that I can look upstream a little bit and maybe have some practical considerations. We're going to get asked to screen a lot of times as some of the hands went up early, regardless of what our stance is on that. So just keep in mind when I'm talking here, I'm talking about a screening request only. We're going to get people that are referred downstream, either self-referral or workplace concerns or concerns from the family. And as already we've been talking about, just the screening of the age, it ignores so much, you know, the medical conditions, the medications that people are on. More common than I see at physicians, we're not very good at eating, sleeping, and moving very well, and sometimes when those are out of whack, that we might not be looking very good. So I am not a neuropsychologist. I am an occupational physician, and I'm also a psychiatrist, which makes me kind of a strange bird as far as that goes. And you might think that I have neuropsychology and you might think that I have neuropsych training, and I probably do from osmosis over time, but that is a very different type of training that neuropsychologists undergo. And again, I'm usually someone who's downstream. Actually, in my role in working with physicians, I can be upstream, but usually, I guess it depends on what you mean by upstream. I've talked to a lot of people about careers and burnout and things like that, and have seen people toward the end of their careers and trying to figure out transition and sometimes issues with cognitive issues. We're different. I guess I'm not the only strange bird in here. This applies to most of us who are in this room, for sure. And a shout out to my colleagues at Mayo Clinic. We just wrote a paper recently that's in this month's Mayo Clinic Proceedings. It's the first part of a three-part physician health series, and what we talk about that is kind of how we are different as physicians first, which we need to take into consideration if we're talking about screening here. We're kind of VIPs of sorts. When you take a look at, you know, within our hospital systems, we have leadership roles and we're the rainmakers, and that makes it kind of difficult at times for us to leave and put things down, and that's why, you know, we have burnout and all those other things. And there's personality factors. We're driven. We're perfectionistic. We don't take failure very well, and there's a lot of shame associated with failure. That makes us really good at being cogs in a wheel and being excellent worker bees, but we make horrible patients, at least in the beginning. I think when we finally get into the role, we do okay. And there's factors inherent to our work, of course. We have the long work hours that we all know about, and everyone wants a piece of us, from credentialing bodies to licensing boards and those sorts of things. We have medical knowledge, which is a good thing, but that means we often will self-treat or we'll try to navigate the system ourselves or we'll try to find a colleague that will help us, and that often can be helpful, but sometimes that actually short circuits our care and makes things worse. We're isolated. You know, I love coming to this conference because I get to talk to my colleagues. I have to come to Orlando sometimes to be able to do that because we're working parallel, you know, across the hall or whatever that might be, and there's ethical challenges also with us as physicians when we have medical issues, especially if it happens in a beloved colleague. What do you do? I mean, we have legal and ethical considerations for our patients to make sure that they're safe, but yet we also care about our colleagues, and certainly when there are those health issues, that could potentially impact relationships in the workplace. So I'm just looking at this from a commonsensical standpoint, again, dovetailing a bit on what Howard said. What's, you know, what's reasonable for us to do this? And there's really not a whole lot of guidance, particularly for this specific population, about what to do. So what do we do at Mayo Clinic? And some of my colleagues can probably dig in more of the details, but there's not much more than this. There's a nurse visit with a vision and hearing screening and then a Kochman test, which is similar to the mini mental status exam. And part of this is a lot of quote-unquote cognitive errors really aren't cognitive concerns at all. It's just that there was some limitation with hearing or vision or communication, and it just came up as being a cognitive concern. And then you kind of have to do a SNP test a little bit. Do I have a reason to think that there's a concern and any other test is needed? And usually you don't want to go down that road, as we've already been talking about, if we don't have really have any probable cause. All right, so if you want to do a bit of a deeper dive, and Howard talked about what he does, I mean, some of this is just bread and butter that we already know how to do. It's taking a look at the history. Are there any concerns at all at home or at work, particularly with, you know, patient complaints or performance concerns, whatever that might be. Ideally you'd have some collateral history. And then the interview and observation. We need to do that well. One thing that I do really for all of my patients that I recommend you do if you don't, I go to pick them up in the lobby and I take them to the exam room and I take them out to the desk at the end. There's a lot of purposes for that. One of them is certainly I think it helps with rapport. Two, I actually get up out of my desk, which is a good thing, and I get to move. Otherwise, I'm stuck there all day long. Patients seem to like it, which is a really good thing. But also, I learn a lot about them as well. So you can do some of the things that you would have even in a screening neurological exam just by observing someone in a lobby. You know, are there tremors? You get to see their gait when you walk into the room. How are they interacting with other people? How are they interacting with other people when I'm not there? Because it might be different than when they're interacting with me. And then, you can do anything from your physical exam that you'd normally do. Some of the screening stuff I just talked about already to do in a full physical exam. And there's a whole issue that's already been touched about with cognitive screening. So there's problems with the Mini-Mental and the Copan and Mocha. These are blunt tools. And they're not normed for physicians at all. And we are different as a population. And really, what's probably more sensitive along that line is the behavioral observations that come in the workplace. Because by the time we fail, the decline's already obvious and picked up by others. And it's not sensitive enough to pick up some relative declines from a high-functioning baseline. And it's a good thing that we're familiar with the test as Howard mentioned before. Because I know that I can probably pass most of these screening tests because I've given them enough times. And orange air, plain tobacco, I know that really well. But there are also false positives as well. So we have people who come in who, they're doing just fine at work. There's no problem whatsoever. But yet, they don't do well on a Mini-Mental status exam. So what do you do with that? And it gets down to our training as occupational physicians. Just because you have symptoms of something, that really doesn't mean that there is any sort of diagnosis or impairment. And it doesn't lead down to that, can you do the essential functions of your job as a physician? And Howard talked about the kindness. We wanna have some kindness in the whole process as well. And I've had a number of times just doing screening tests with physicians. And they can be anxious. And anxiety is often a reason that you might miss a couple points on one of these screening tests because you're thinking about you missed the last answer because you're hard on yourself and you wanna perform well. And then all of a sudden, you miss the next one. And that's what happens from there. So really, if you wanna have more sensitive tests, they have to really be designed by people that know what they're doing and correlated to exactly what is going on. And this is something that's gonna take a lot more time and cost. And it's gonna be variable, particularly when the credentialing requirements are so vague. The tests themselves aren't perfect as we've sort of already talked about with the screening tests. But any test that we give along that line isn't necessarily a blood pressure per se. And as Howard mentioned as well, do they really predict a real world behavior? What do you do afterward after you have all this? So, I mean, if there's no concerns at all, you probably wanna have just a simple statement that no overt concerns were noted on screening with a disclaimer that there could be false negatives. It's not something that is diagnostic. And you probably wanna have that same disclaimer on the other end if there are concerns identified. What do you do with that? If you have a positive on a screening, you'd probably wanna do a little bit more, of course, than the mini mental, as I talked about before. What parties received the information? That was something that Howard talked about that was important. And I would just say is I think we all do, and we have a bias towards this, is we wanna keep people working as occupational physicians. So we wanna err on the side of keeping people at work. And now we'll go to questions. I'm gonna hand for our panelists. Thank you so much. So, we have now heard from the perspective of advising on policy. We have heard from the perspective of, I'm just told to do it, and I gotta figure out what to do, right? And we have heard from the perspective of, you're just an occupational physician. Someone else is sending you their doctor and telling you we need a report back. And just to clarify, when Greg and I see the physicians at Mayo in this Physician Health Center, they're not our employees. We do not have a cognitive screening policy at the Mayo Clinic, but we frequently see physicians who are sent to us from other places, and this may be a reason. And so these are the three perspectives, and all three of these were represented in the audience. So please come and ask questions for our panelists. We have 10 minutes for questions. There's one mic here, and I'm gonna take the other mic and go down to the other aisle. So if you, first person wouldn't mind, go ahead and log up there. And you guys on the panel, if I'm down here, just recognize the next speaker, okay? Hi, my name's Nate Brady. I'm from Iowa. I'm not an idiot. What I heard here is we should try to avoid this at all costs with physicians if we can, unless, I mean, just to clarify, we're really looking for somebody should have a complaint before we do this if we're advising on policies to get back to where we started, if that's our influence. That's my takeaway from this talk. I think that in medicine, we're taught about, in terms of epidemiology, pre-test probability and how it impacts your interpretation of a test. And I think of that, this situation, in the same way. If you don't have a good pre-test probability, then your likelihood of interpreting the test properly is not good. And so I would say, again, pre-test probability like we do with other tests should apply to this sort of evaluation. And I'll say the EEOC has not opposed testing like this when there is actually cause for concern, when there's been a complaint raised, when there's performance metrics that are dropping. We haven't opposed doing this testing in those circumstances when there is cause. We believe if there are concerns raised, they should be responded to appropriately, but it shouldn't just be an across-the-board policy based on age and nothing else. And I would just say, Dr. Brady, yes, you are not an idiot. Yeah. Yeah. But if anyone is questioning him, maybe we can test you and find out. I'll recognize this one. We have someone on that aisle as well. So anyone, if you're on that side and have any difficulty with mobility or just want to, you know, it's difficult to get all the way over here, Dr. Berman has offered to be our mic holder over there as well. Next. So thank you. Austin Sumner from Vermont. My question is, when you are doing that fitness for duty exam, do you recommend that that medical examiner do observe that physician in practice as part of that examination, if it is at your local hospital? As I heard you mentioned a few times, observing the person actually doing what they're supposed to be doing is a better indicator of their fitness than just seeing them in your exam room. From my own perspective, the people who work with that individual, things filter up in a medical center. So the section chief, division chiefs, the chairs, they hear things. They hear rumblings. They know. For me to go observe a surgeon do a procedure in my mind is not helpful. It's more important to know what their colleagues who work with them on a regular basis and have similar skillset think about them. So I would not think it would be helpful for me to go and observe them do their job. And after you conducted your exam, would you then seek that information from the colleagues who have direct observations? Absolutely. On that side. One of the things is that hopefully all of us are on the upper level of the cognitive ability scale just because of our profession and our education. So have we really considered, I mean, we could test normal but be significantly changed from our personal normal. And sometimes too, also, when colleagues maybe refer you or may think about referring you, they're comparing you to your current level. So they may notice a slight decrease in your abilities but you're still able to perform your duties, maybe a little slower, maybe it just takes a little longer. But that may be observed by individuals. So have you considered that we all generally tend to be starting at a higher level and the expectation of us is to maintain that high level? But you know, people come out of medical school and they do a residency and they evolve in terms of their skills and their procedures. And as you practice medicine for a longer time, you evolve. So we're a work in progress throughout our professional career. And I don't, I view that as a positive, not as a negative. And let's say an individual does have some cognitive decline or some decrease in ability from a manual standpoint. If it doesn't affect their day-to-day job, their ability to do the job, it's none of our business. It's none of our business unless they ask us to help them and then we'll help them. But if we cannot adequately say that this person's performance is not adequate, we should not be forcing those people to undergo evaluations. That's my take on it. You know, I think the point you raise also goes to the difficulty, you know, in anyone who would be trying, you know, and trying their best to develop such a program that would determine if someone is safe to practice medicine, that the norm set for physicians specifically does not exist. And there is a difference between, you know, having, you know, some small cognitive decline from what you might've been at 20 years ago versus having a decline to the point where you're not safe to practice anymore. And, you know, that's information that would be necessary to, you know, to implement a program like this is to know that performance at a certain level on the test translates to unacceptable performance on the job. And that data just does not exist at this point from what I understand. And I really struggle with that a lot of times with downstream evaluations because you get these neuropsychological tests back and there might be some dizzle or something on there that I have to interpret and figure out what to do and the physician's doing just fine. Even in cases where there's something where there might be a big decline, it really depends upon what they're doing. I had a woman in her 50s who was a psychiatrist and didn't do too well on neuropsych testing, but was perfectly fine with rapport and dealing with patients. And could she do psychotherapy versus, you know, prescribed medications? I mean, it really gets to be complex when you're taking a look at those questions and then erring on the side that they can do their job is where I usually lie. And maybe that isn't always the best case, but that's just where I've been. Dr. Brewer. I'm Dr. Laura Brewer from Mayo Clinic. As you mentioned, Dr. Swift, we don't have an age-based screening program for our own physicians at Mayo Clinic. We do have a robust fitness for duty program. And I think, you know, the physicians don't practice in isolation. We practice in teams. And I'm wondering, you know, the feeling of the panel of what's the likelihood that you would catch something on these screening exams that wasn't apparent based on someone's documentation or practice? You know, I think like the electronic medical record, it's kind of like Big Brother. It's telling us how much time we spend looking at patient records, how many days it's taking us to close out a patient, things like that. And that's one thing that we see that kind of triggers concerns for fitness for duty if someone's, you know, behavior has changed, if they're not able to keep up with their work and those things. And so what's your opinion on that? You know, the tools that we have in place already are those working to catch some of these issues for physicians? The tools and the teams, yeah. Well, I've raised that question with our process improvement people because my perception is there is so many quality measures that are followed that those should be adequate. Or if they're not adequate, then we should develop more quality indicators. And that should be the thing that, one thing that might trigger a fitness for duty evaluation, but I think we need to focus on quality. That's the indicator, what quality, behavior, objective things that should be the thing to trigger a fitness for duty evaluation. Now, I wanna be mindful of everyone's time and respectful of the other speakers. We're about to go into a 30-minute break. We've got four people and depending upon the question, we may have to make a call here, but please, for those of you in line, please stay and we'll get through as many as we can, right? All right. My question is really somewhat on the legal side. I do sit on the executive committee for 30 years, okay? I keep applying to go off, but I can't. And so my question is, at my hospitals, it's five hospitals and it's a semi-public hospital system. It's a weird tech space. But the point about it is, in everything that you showed on the legal basis, it said employee. What about doctors who are not employed at the hospital or within the hospital, but have privileges to practice there? How would that formulate if they're not employees? So the determination as to whether they're considered employees under the law is going to involve a number of factors. It essentially looks at the degree of control the institution exercises over the person when they're performing services at that hospital. In the litigation that I am counsel on, Yale ended up stipulating or basically agreeing that for the purposes of only this litigation, the doctors will be considered employees. But whether or not they'll be considered employees is going to be kind of a multifactorial analysis of the degree of control exercised over people when they're operating within the hospital, within the institution. So you'd look at factors of, are they required to comply with certain policies? Who's providing the tools? Who's providing the staff that's supporting them? There's a number of different factors that you look at. But in that situation, it was agreed, and our case involves people who have credentials at the hospital. So it's going to depend on kind of assessment of a lot of those factors. But just because you're saying, okay, this person just has privileges, we don't consider them a direct employee, that does not mean that it's not possible for them to be considered an employee under the law based on those analysis of factors. Thank you. Raymond. It's interesting that physicians, almost alone as an industry, consider this to be an issue when we have a fairly inflated sense of our ability to harm or to affect patient outcome if we're non-surgeons, when you can name dozens of professions who can kill people right now. That's right. And we have this inflated sense of this. Nobody else has this discussion. That's right. Where we live in a bubble as physicians, and we don't really work in the outside world as non-physicians. Right. But nobody else is having this discussion. So why are we, when you can name lots of people that can kill people right away in their job, including nurses who work on the floor and administer IV medications. That's a very risky scenario. But one argument from, for example, Yale, is that there are other professions, such as you have to retire from the FBI at age 57. Airline pilots have mandatory retirement ages. So that's one argument saying that, physicians are not that different. Maybe there should be a mandatory retirement age. There's evidence to support, or there are other industries that have that. I would argue with that, but that's beside the point. So the pilot issue is only for transportation pilots, meaning airline pilots. That was an ugly backroom deal between the first administrator of FAA, pilots in the room would know this, Elwood Casada, and the chairman of United, who didn't want to pay their experienced pilots. And they said, why don't we make it six? It's 1959. Our understanding of how older workers work is maybe evolved a little bit from 1959, but that's the entire reason. It's an FAA regulation that was a handshake deal with the industry. Thank you. Perhaps not evidence-based. Dr. Flores. Thank you, and thank you for your presentation. I think most of us probably agree with at least the gestalt of where you're headed. I would like to ask a tangential question, step back, make it hypothetical. What about the state medical boards? I mean, practicing medicine is a privilege, not a right. So if my medical board said we want to do this, where would the EEOC come down on that, hypothetically? And do you know of any activity that's going on with the state medical boards of mandatory assessments based on age? I'm not aware of any activity right now based on from state medical boards imposing age-based testing. I think the, I know there was some back and forth with the AMA as they were considering this issue. I would like to think that the position and the side they eventually came down on would have some impact on the actions of state medical boards. Generally, we are looking at the actions of employers, but there are certain situations in which even if someone is not directly an employer, if they're imposing restrictions which have the effect of restricting someone from employment, there could possibly be liability there. So it's not something that I could say is completely out of the realm of possibility. And if that comes up and there's a charge of discrimination relating to it, then it could be something we could look at. But it would have to then determine based on the individual facts of the situation how it would all come out. Thank you. All right, and our final question. Thanks, thanks for that wonderful presentation. I've been in this situation a lot. I've had a physician that was terribly hurt in an accident that returned to work. And I've also had a, this is recently a psychologist that was out for a number of months due to a mental health condition. And so, and also I have a 70 plus year old driver that has Parkinson's and may have some issues. So I guess the question for me is how much do you take into consideration their private physician's opinion about their ability to do the job? Do you take that into consideration? Do you seek out that information? Or is that not really, it doesn't really hold great weight? Well, I can say I do seek out that information, but I don't put that much weight on it. Most of us know if you have a private practitioner, people don't wanna lose their patience. You go to your private practitioner and say they're giving me a problem. I can work, I just need a letter from you saying I can do my job. Many physicians will write that letter. So I certainly look at the letter, but my approach to dealing with fitness for duty is to be as objective as I can. Take the whole, all the information I have and put it together to come to a conclusion. If the fact that their personal physician says X, Y, and Z, that in itself wouldn't hold, wouldn't mean much to me. And importantly, that is a fitness for duty situation, not a screening based on age. So very different situation. Thank you. All right, thank you so much everyone. Thank you to our panel.

cognitive screening tests

physicians

age-based testing policies

fitness for duty evaluations

legal considerations

occupational health

psychiatry

quality indicators

sensitivity of screening tests

individualized approach