Feb. 12--NEW HAVEN -- The U.S. Equal Employment Opportunity Commission sued Yale New Haven Hospital Tuesday, charging that the requirement that the medical staff age 70 and older undergo cognitive testing violates federal anti-discrimination law.

The commission claims, in a 10-page complaint, that the hospital's policy, begun in March 2016, violates the Age Discrimination in Employment Act and the Americans with Disabilities Act.

The "Late Career Practitioner Policy" required medical professionals who had turned 70 years old to undergo a battery of cognitive and ophthalmological tests in order to earn reappointment to their positions. Hospital staff have said that 141 individuals were tested, 125 of them physicians, and that 18 retired as a result.

Dr. Leo Cooney, a geriatric specialist at the hospital, and Dr. Thomas Balcezak, chief medical officer for the hospital, wrote a report on the program for the JAMA Network in its Performance Improvement series. The battery of tests was designed by Keith Hawkins, a neuropsychologist at the Yale School of Medicine.

According to Markus Penzel, attorney with the EEOC in Boston, hospital administrators "already have in place quite a lot of evaluative procedures, techniques" to determine whether employees are mentally competent to perform their duties. According to the lawsuit, Yale New Haven has procedures described as a "Focused Professional Practice Evaluation."

"This lawsuit is not trying to make the world safe for incompetent doctors," Penzel said.

He said that a medical exam can be given to someone applying for a job, but once they are hired, "you can't give someone a medical exam unless there's an individualized suspicion or concern" that the employee's performance is affected.

The law would apply even if all employees were required to take the exam, regardless of age.

According to the lawsuit, all employees are evaluated every two years. "In this process, consideration is given to each individual's ability to exercise the privileges requested in the hospital setting with reasonable skill and safety. Privileges are granted following appropriate evaluation through Medical Staff leadership, the Medical Staff's Credentials Committee and its Executive Committee within all operating peer review processes."

One employee was named in the complaint: Dr. Irwin Nash, who specializes in anatomic-clinical pathology and internal medicine, according to a Yale New Haven Health website. Nash, who the lawsuit says passed the tests, would not comment except to give his age as 75.

"By subjecting its employees to the Policy, [Yale New Haven Hospital] violates the ADA's prohibition against subjecting employees to medical examinations that are not job-related and consistent with business necessity," the lawsuit states. "In addition, because YNHH medical staff privileges are a condition of employment as a clinical faculty member of the Yale School of Medicine and other local employers, the Policy interferes with the enjoyment of rights protected by the ADA of Yale School of Medicine employees and other local medical employees."

According to the complaint, "As of April 2019, Defendant had applied the Policy to 145 individuals, all of them age 70 and older. Of these, 14 were listed as 'Borderline deficient;' 1 listed as 'Deficient;' 7 as having 'Failed;' 5 as 'N/A' because they refused testing and either resigned or changed their status; 80 as having 'Passed;' and 38 as having 'Qualified Passed.' Of these 145, 21 have since had the neuropsychological testing administered a second time; Defendant lists all but one of these as having 'Passed' or 'Qualified Pass.' The lone individual not listed that way is listed as 'Need to have a discussion regarding modifying his duties to simple coverage because of his findings.'"

In a statement, hospital spokesman Mark D'Antonio said, "Yale New Haven Hospital's late career practitioner policy is designed to protect our patients from potential harm while including safeguards to ensure that our physicians are treated fairly. The policy is modeled on similar standards in other industries and we are confident that no discrimination has occurred and will vigorously defend ourselves in this matter."

Yale New Haven Hospital is the teaching hospital of the Yale School of Medicine. The lawsuit states that the medical school "has a large say in who heads each clinical department, and Dr. Nash himself supervises, and continues to supervise, numerous YNHH employees."

According to the complaint, on Aug. 15, 2019, the EEOC issued a letter of determination that the hospital had violated the anti-discrimination laws and sought to resolve the issue through conciliation discussions. "On October 11, 2019, the Commission issued to Defendant a Notice of Failure of Conciliation advising Defendant that the Commission was unable to secure from Defendant a conciliation agreement acceptable to the Commission," the complaint states.

"The unlawful employment practices complained of were done with malice or with reckless indifference to the federally protected rights of Dr. Nash and all similarly situated individuals," the lawsuit states. It asks for a permanent injunction against the age-related policy and against acting interfering with employees' rights under the ADA.

It asks for back wages, an equal amount as liquidated damages, possible reinstatement, pay in lieu of reinstatement or other means to compensate those affected. The lawsuit also asks for compensation for "emotional pain, suffering, loss of enjoyment of life, and humiliation, in amounts to be determined at trial."

Penzel said the damages for each defendant will be sought "on a case-by-case basis."

"While Yale New Haven Hospital may claim its policy is well-intentioned, it violates anti-discrimination laws," said Jeffrey Burstein, regional attorney for the EEOC's New York District Office, in a press release. "There are many other non-discriminatory methods already in place to ensure the competence of all of its physicians and other health care providers, regardless of age."

Judy Keenan, acting director of the EEOC's New York district, said in the release, "The EEOC will remain vigilant in monitoring the adoption and use of policies that are based on discriminatory age-based assumptions." The New York District includes New England, New York state and northern New Jersey.

edward.stannard@hearstmediact.com; 203-680-9382

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