Dealing with Disruptive or Impaired Practitioners Dealing with Disruptive or Impaired Practitioners Sponsored by Professional Renewal Center; co-sponsored by the Healthcare Liability and Litigation, Labor and Employment, and Physician Organizations Practice Groups Thursday, January 28, 2010 Thursday, January 28, 2010 1:00-2:30 pm Eastern 1:00-2:30 pm Eastern Presenter: Christopher T. Terrell, Esquire Associate General Counsel HealthSouth Corporation Birmingham, AL [email protected]The views expressed in this presentation are those of the author and are not purported to reflect those of HealthSouth Corporation.
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Dealing with Disruptive or Impaired Practitioners Dealing with Disruptive or Impaired Practitioners Sponsored by Professional Renewal Center; co-sponsored.
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Dealing with Disruptive or Impaired PractitionersDealing with Disruptive or Impaired Practitioners
Sponsored by Professional Renewal Center; co-sponsored by the Healthcare Liability and Litigation, Labor and
Employment, and Physician Organizations Practice Groups
Thursday, January 28, 2010 Thursday, January 28, 2010 1:00-2:30 pm Eastern 1:00-2:30 pm Eastern
Orthopedic surgeon on staff at Pottstown Memorial Hospital
Diagnosed with attention deficit disorder
Physician accused of various rules infractions
Hospital suspended physician’s privileges
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Menkowitz: Holding
Physician was disabled and could assert a claim under Title III of the ADA
Physician could assert a claim under the Rehabilitation Act
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Clackamas: Facts
Medical clinic in Oregon Employed bookkeeper who sued clinic for
disability discrimination Number of employees?
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Clackamas: Holding
Common-law element of control principal guidepost
Applied six-factor EEOC test “The employer can hire and fire employees, can
assign tasks to employees and supervise their performance, and can decide how the profits and loses of the business are to be distributed.”
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Salamon: Facts Board-certified gastroenterologist
Nine years on staff at hospital
Performance was subject to review and oversight
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Salamon: Holding
Second Circuit focused on the first Darden factor (i.e. manner and means)
What the hospital called “quality assurance standards” actually dictated the details of the plaintiff’s medical practice
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Fleming: Facts
Anesthesiologist suffered from sickle cell anemia
Applied for position at Yuma Reg. Med. Ctr.
Upon learning of Fleming’s sickle cell anemia, hospital informed him that it could not accommodate him
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Fleming: Holding
Section 504 of the Rehabilitation Act is not limited to employers and employees, as defined in Title I of the ADA, but rather applies to independent contractors and the entities that hire them
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The Rehabilitation Act
What is the Rehabilitation Act?
How it differs from ADA
Impact on Hospitals and Physicians?
When Does it Apply?
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The Americans with Disabilities Act
What is the ADA?
Title I and Title III
ADAAA
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The ADA: Basic Definitions
“Disability”
“Qualified Individual”
“Regard As”
“Episodic” Impairments
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The ADA: Mental Impairments
Definition
When is a mental impairment a disability under the ADA?
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Bad Behavior
Traits or behaviors are not, in themselves, impairments
Not all impairments substantially limit a MLA
Not all substantial limitations on a MLA are disabilities
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Living & Working with Psychiatric Disabilities
Requests for accommodations (No “magic words”)
Accommodations to consider
Addressing performance issues fairly
Step 1: Determining Whether an Employee Requires Accommodation
Employee Disclosure
Disability-Related Information Accessible to Employers
Documentation from a Qualified Professional
What if the Disability is Readily Apparent?
Step 2: What Accommodation is Reasonable, Effective, & Appropriate?
Know the Essential Job Functions and Requirements
The Interactive Process
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When Corrective Action Is Necessary
Be fair
Don’t let a problem fester
Evaluation based on facts
Written documentation
Progressive discipline
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Medical Evaluations
Ask why—actual job performance is best evidence
Fitness for duty
Be prepared for doc’s doc’s opinion
Confidentiality
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Common Mistakes Stereotypes Inconsistency Not engaging in interactive process Lowering standards Lost-referral-itis “Doctors-will-be-doctors Syndrome” Rush to judgment
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In Sum….
Avoid preconceived notions
Focus on the facts and behavior
Understand the disability—don’t play “doctor”
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Illegal Use of Drugs & Alcohol
Past use & treatment is protected
Current use is not protected
Violation to act based on perception of drug use or alcohol dependency
Drug testing is still permitted
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Family Medical Leave Act
Mental illness can be a serious health condition under FMLA
Continuing treatment
Intermittent/reduced leave
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What Is a Serious Health Condition?
Illness, injury, or impairment, or Physician or mental condition That involves inpatient care or Continuing treatment by a healthcare provider
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Continuing Treatment
Incapacity and treatment Regimen of continuing treatment under
supervision of a healthcare provider Pregnancy or prenatal care Chronic conditions Permanent or long-term conditions Conditions requiring multiple treatments
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Intermittent/Reduced Leave
Medical need for leave and
Must be best accommodated through intermittent leave schedule
Reasonable effort to schedule treatment so as not to disrupt unduly employer’s operations
Conclusion: Putting It All Together
Does the ADA or Rehab Act apply? Is the cause of the disruptive behavior or
impairment a disability? Can the disability be accommodated?
Any views or advice offered in this publication are those of its authors and should not be construed as the position of the American Health Lawyers Association.
“This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought”—from a declaration of the American Bar Association