New Legislation Would Ensure That Every Driver Receives Fair Treatment From The DMV
“Our society poorly supports individuals who no longer drive. Patients who forego driving often lose independence, compromise their ability to work and provide for their dependents, have difficulty maintaining social contacts, continuing involvement in personal interests, and participating in community activities. Those losses have profound implications in terms of emotional and physical well-being, quality of life, and evaluation of self-worth. The physicians’ role often is pivotal in determining physical and mental conditions which may impair a patient’s ability to drive. In some situations, physicians may have an ethical obligation to the safety and welfare of the community to report such disabilities to the authorities.
However, this obligation must be in proportion to actual and relative risk and, in order to be just, must cover all disabilities that convey similar public risk. Furthermore, the disclosure must lead to concrete actions in the interest of public safety. Otherwise, the breech of patient confidentiality cannot be justified ethically.”1
Grayson’s Story
On a late summer morning in rural Virginia, Grayson drove his SUV to the doctor’s office. He had a lot on his mind. As primary caregiver for his spouse who was battling Alzheimer’s, he was responsible for almost every aspect of their domestic and civic lives. In addition, the outcome of the appointment to which he was driving would help determine whether he was a good candidate for a surgical procedure that had been looming on the horizon. Thinking about the surgery added an additional layer of stress and anxiety to his day. He pulled into the parking lot of the medical office where a general practitioner examined Grayson for approximately 10–15 minutes. At one point during the examination, Grayson was asked to remember three words, words that would ultimately prove life-altering. Grayson left the physician’s office, completed his errands and drove home.
Several weeks later, Grayson received a non-descript US Mail envelope from the Virginia Department of Motor Vehicles stating that the DMV had received unsolicited ‘information’ concerning his ability to drive and that Grayson’s driving license had been suspended immediately. There was no customary 15-day notice, no indication of who dropped the dime on Grayson and no option to submit to a driving examination or road test prior to suspension. Grayson was informed that if he wanted to get his license reinstated, he had to obtain a positive medical report from another doctor, a process that could easily take several months. Or, he could contest the decision, another lengthy route. Grayson was stunned to find himself so abruptly stranded. He considered the events of the past several months: Who had reported him? Why? What would he do now? Of equal importance, Grayson felt he deserved answers relating to the chain of events that led up to his license being summarily suspended without the due process afforded other drivers in Virginia.2
Grayson’s fight would take over a year from start to finish, including six months trying get an appointment with a new GP, then with an appropriate geriatric specialist. In the end, he was diagnosed with ‘mild’ cognitive impairment and cleared to take the driving rehab evaluation, which might have afforded him a restricted license. But by then, almost a year had passed and, recently diagnosed with macular degeneration, his vision had begun to diminish. Grayson, disillusioned and frustrated with an already lengthy process, decided not to pursue further testing and to forego driving altogether. A tough decision for anyone.
Grayson’s story is real. It could happen to you, to me, a parent, or loved one. Current Virginia law allows any medical professional to anonymously recommend to the DMV the suspension of a patient’s driving privileges without any further testing or involvement from driver assessment professionals. There are no special credentials or training required of the medical professional, and they’re not required to disclose to their patient that they are administering a test or what it is for.
Grayson and his family were determined to find a way to use this eye-opening experience to create positive change. Having already spent countless hours navigating the maze of problematic DMV policies and the Virginia Codes that enable them, they decided that the way forward was to press for modifications to current legislation. If enacted, those amendments would ensure that every driver (not just mature drivers) in Virginia would receive due process from the DMV.
With the help of subject matter experts, we explored the significant medical, legal and legislative issues that surfaced during Grayson’s journey. We’ll discuss their implications, and finally, circle back around to highlight the common sense legislative fixes crafted by Del. Barry Knight.
Patient Confidential?
Physician Reporting, Privacy Law and the DMV
In Virginia, anyone may report a driver suspected of being impaired to the DMV, but current DMV policy, supported by Virginia law, protects the identity of the reporting individual and the reasons given for reporting the driver if the source of the information is “a relative of the driver, or a physician, physician assistant, nurse practitioner, pharmacist, or other licensed medical professional … treating, or providing medications for the driver.”3
In Grayson’s case, it came to light that the person who reported him to the DMV was a medical professional—the physician he had seen for the pre-surgery evaluation. Grayson wondered why his personal medical information had been disclosed to the DMV without his assent and precisely what information in that report drove the decision to suspend his license.
Given the strict medical privacy protection provided by the Healthcare Insurance Portability and Accountability Act (HIPAA), how was this possible? Well, it’s possible if someone is considered by a medical professional to be a ‘serious and imminent threat.’ In that case, normal HIPAA protections cease to apply. Physicians may report patients to the DMV and share what would normally be considered Protected Medical Information (PMI) with the DMV—then the DMV can immediately suspend a driver’s license. Just like that.
Making the determination is a huge responsibility for physicians; if PMI is disclosed without clear, empirical evidence that the patient is a serious and immediate threat, that disclosure could be considered a violation of HIPAA privacy rules, and the reporting medical professional could face serious consequences, including loss of license.
It would be difficult for Grayson’s doctor to claim that Grayson represented a “serious and imminent threat” since he was allowed to drive home from his appointment and was never questioned about it. Further, it is difficult to understand how the DMV could accept and encourage such reporting of Protected Medical Information under the “serious and imminent threat” determination when they are fully aware that their license suspension process takes at least six weeks to enact. Serious and imminent threats generally imply a 911 call, not a 6-week process that leads to a notification mailed standard US Mail with no proof of delivery.
The decision to report Grayson to the DMV was triggered principally by his inability to recall those three words the doctor had asked him to remember—a zero score, which, according to the test’s metrics, placed Grayson within the ‘demented range.’ Thus, the doctor elected not to give Grayson the second, important, clock-drawing portion of the test, which evaluates higher-level executive functions like those that operate when a person is driving. If there were adjacent concerns that could have impacted Grayson’s driving such as arthritis, or mobility issues, those could be addressed through occupational therapy or through initiatives like CarFit, a program designed to “fit” a vehicle to senior drivers for maximum comfort and safety.
But let’s put Grayson’s examination in context. In a brief, prior visit to the same physician, Grayson found the doctor to be a fairly jovial guy, and so he didn’t take the request to remember the three words very seriously. He later related that he thought the doctor might have been setting him up for some sort of joke or punchline. In reality, Grayson had been tested without his knowledge, the doctor using only one portion of the Mini-Cog test, a basic screening tool designed to help medical professionals identify patients who might require a more complete evaluation to firmly diagnose the degree of cognitive impairment present. Usually, both parts of the Mini-Cog are administered together. Neither is considered a stand-alone diagnostic tool.
Additionally, why were family members excluded from the decision-making process when such important judgements were being made on Grayson’s behalf? Diverse professional associations within the medical community urge physicians to view their patient’s lives as part of a larger ecosystem, taking into consideration the family dynamic and, whenever possible, inviting both the patient and appropriate family members into significant potentially life-altering conversations—including driving-related issues.
The American Medical Association (AMA) recommends that if a physician suspects that a patient’s driving may be impaired, then a sensitive discussion with the patient and family may suggest further treatments such as occupational therapy and may encourage the patient and family to decide on a restricted driving schedule. Mature drivers and their families don’t have to do it alone—Virginia has many excellent resources to help seniors extend their safe driving careers, and they’re available through the Grand Driver Program, AARP, AAA and The Virginia Department for Aging and Rehabilitative Services.
Being without a driver’s license for several months may not seem like a big deal to many people, but absent a clear diagnosis and supported by an unconfirmed suspicion of cognitive impairment, an immediate suspension can present considerable hardships, particularly for people who live in rural areas where no public transport exists. Suspension should be a last resort. Drivers of any age should not be presumed guilty until proven innocent.
In a letter to Grayson’s son, the doctor stated that it was a requirement of his being licensed in the state of Virginia to provide Grayson’s report to regulatory agencies such as the DMV so that they could take appropriate action. Under current policy, if the initial report to the DMV originates from a medical professional, the DMV doesn’t have to give the driver the benefit of the 15-day notice or opportunity to obtain an examination from a specialist prior to suspension. This means that in terms of due process, the DMV doesn’t treat every driver uniformly, one of Grayson’s concerns.
Though Virginia is not a mandatory reporting state, the doctor ‘in good faith’ may have felt a personal duty to prevent harm. But he made no effort to have a preliminary, fact-finding discussion with Grayson about his driving capabilities, nor did he attempt to create an opportunity for meaningful collaboration with the patient and with supportive family members. Since drivers with some level of cognitive impairment may have perceptions of their driving ability that do not correspond with reality, family involvement can be key.5
A large segment of mature drivers eventually decrease their range, avoid night driving or cease driving on their own as they acknowledge diminishing abilities or creeping, non-correctable visual impairment. Grayson thought he’d have the opportunity to naturally and gradually decrease his driving range on his own, enlisting the help of his family to put in place alternative transportation plans that could be acted on in the future. But Grayson’s GP and the DMV made that decision for him.
We posed some interesting and controversial questions to four regional medical experts pertaining to cognitive testing, anonymous reporting, family involvement, privacy law and physician responsibility. Since we consider their responses to be especially impactful, we placed them together in their own section titled ‘OP Med’ beginning on page 56.
Are You a Serious and Imminent Threat? Who Decides?
As the population ages, healthcare professionals will more frequently be faced with the difficult task of determining whether a patient is safe to drive and whether to report mature drivers (and others) with suspect abilities to the DMV. Maintaining safe highways is important, but preserving the physician-patient relationship, protecting a patient’s private medical information and fostering a collaborative approach that involves the patient’s family members when possible helps creates a supportive environment where touchy subjects like driving ability can be discussed.
It’s complicated. Neither the DMV, The Department of Health and Human Services (HHS), nor the Virginia Legislature have any guidelines or multi-pronged test to help medical professionals determine whether a person poses so severe a threat to themselves or public safety that they can in good conscience release protected medical information to the DMV, which then can decide to bypass the 15-day notice and reinstatement process outlined in Virginia Code.
In fact, much of the thinking behind ‘duty-to-warn’ laws and the meaning of the terms ‘serious and imminent’ have their roots within the psychiatric, social work and mental health communities. Over time, meaning was derived from crisis situations: persons deemed to be suicidal or homicidal, and from the perpetrators of mass-shooting incidents—not drivers ‘suspected’ of being impaired.
For example, in 2013 after the mass shootings in Newtown, Connecticut and Aurora, Colorado, the HHS Office of Civil Rights released to all healthcare providers a letter to make them aware that the HIPAA Privacy Rule does not prevent their ability to disclose patient information to law enforcement, family members of the patient or other persons when you believe the patient presents a serious danger to himself or other people.
Any preventable car-related death is one too many, but can one really make a correlation between premeditated mass murder by a psychopath who displayed definite warning signs and the potential danger that a mature driver with a ‘yet-to-be-determined’ level of cognitive impairment poses to the general public?
To help us navigate these issues, we reached out to Scott Alperin, a Virginia Beach-based attorney specializing in elder law, and also to a representative of HHS who would not be quoted in this article but who shared perspectives on the issues surrounding ‘serious and imminent’ as outlined in HHS publically accessible documents and via their website for professionals.6
Alperin explains: “In drafting the federal regulations that govern HIPAA, the Department of Health and Human Services did not specifically define what constitutes ‘a serious and imminent threat to the health or safety of a person or the public.’ However, in recognizing the difficulty that healthcare professionals often face in attempting to comply with the HIPAA regulations, the Health and Human Services Office for Civil Rights (OCR) issued guidance in February 2014 to help explain when a healthcare provider may relay protected healthcare information to third parties. This publication does not have the force of law, but underscores the fact that a legal vacuum exists when defining a ‘serious and imminent threat’ and the need to provide direction in order to balance legal requirement or privacy against public safety concerns.
In the absence of a court ruling that addresses a particular circumstance, healthcare professionals are left to try to apply the law to their particular set of facts. I don’t think the DMV is at risk legally for encouraging healthcare professionals to report ostensibly impaired drivers. The legal risk falls squarely on the shoulders of the party maintaining and wrongfully disclosing protected patient information.
Obviously, these are very subjective determinations that depend upon the facts and circumstances of the particular case. If a court were to define ‘serious and imminent threat’ in the context of the regulation, it would be typical for the court to develop a multi-pronged legal test that would provide standards for future application. But the only way that a court will be prompted to develop a legal test is if there is an actual, justiciable controversy (i.e. an actual lawsuit) that gets before the court. Courts don’t issue advisory opinions.
Regarding a legal remedy, the optimal fix would happen at the federal level through the promulgation of detailed regulations by HHS defining ‘serious and imminent threat’ that would be published in the Code of Federal Regulations. This is especially true in light of the fact that HIPAA is federal law and is being applied by the states. In the absence of guidance from HHS, the Virginia General Assembly could take action by adopting its own definition that would at least delineate the circumstances under which it would be legally appropriate for the healthcare provider to disclose protected health information to protect the motoring public.”
And fielding our questions about the release of medical information, legal opinion, preemption and HIPAA violations, the HHS contact helped clarify their stance: HHS (like the DMV) defers to the assessment of the healthcare provider that an individual poses a serious and imminent threat, and there is the presumption that the provider is exercising their judgement in good faith.
HHS does not offer legal opinions, and they have no specific criteria for what constitutes a serious and imminent threat. Rather, they rely on the judgement of the healthcare provider.
Laws themselves do not violate HIPPA. However, if there are questions surrounding whether a particular use or disclosure of protected information is in violation of HIPAA, individuals have the right to file a complaint, and then HHS can open an investigation ‘where appropriate.’
HIPAA does not prevent states from enacting laws or require that elected officials request a preemption exception determination for any particular law. This means that state law can allow a medical provider to generally comply with the stricter HIPAA law without violating more permissive state law.
So basically, unless a complaint is filed questioning the report of a medical professional, and it is deemed worthy of follow-up, HHS would not intervene or offer an opinion in a particular case, nor would they question the report of a medical professional.
The DMV Position
In the interest of fairness, we wanted to give the DMV the opportunity to weigh in on how they view the role they play in the driver reporting process. Brandy Brubaker, Communications Director for the Virginia DMV answered the following questions: Does the DMV or the Medical Advisory Board utilize any specific or general guidance to determine whether the reported driver is indeed a ‘serious and imminent’ threat before immediately suspending a driving license, or does the DMV feel that any medical professional is in the best position to make that determination?
DMV: DMV’s goal is to allow individuals to drive for as long as they can safely operate a motor vehicle. The agency intervenes if we have reason to believe that the individual may be an unsafe driver. DMV accepts reports of potentially unsafe drivers from law enforcement, medical professionals, judges, DMV representatives, concerned citizens and friends and family. DMV investigates reports and may require a driver to provide a medical/vision report from a healthcare provider, complete driver’s license knowledge and/or road skills testing or to provide a medical report from a healthcare provider. If DMV’s investigation determines that the driver has a condition that affects driving ability, the agency may take one of several actions, based on the severity of the condition, such as restrict or suspend driving privileges or require periodic medical reports.
While the Medical Advisory Board does not individually review every case, it does provide advice to the commissioner. The Medical Advisory Board consists of seven physicians appointed by the governor. Advice from the board is incorporated into agency policies which are used as guidance documents by the staff of Medical Review Services, all of whom are licensed practical nurses, and by the medical compliance officer who is a registered nurse.
Cases are submitted to the Medical Advisory Board for review when the situation is not addressed by these policies or when a case has been referred for an informal conference during which the customer is able to present information as to why they contest the action/requirements imposed by DMV.
Given the fact that there are vast variations in the levels of training that GPs and other non-specialists have in terms of cognitive testing, wouldn’t it make sense to have the driver submit to a more extensive examination by a neurologist or geriatric specialist prior to suspension regardless of who made the original report?
DMV: We can request that a driver obtain a medical report from a medical specialist, if we feel it will assist us in making a determination in their case.
If a GP allows a client to drive home from an appointment, then later anonymously reports the driver to the DMV, is that client really an ‘imminent’ threat to public safety? If the driver were a real threat, wouldn’t it make more sense for the physician to dial 911, or call a cab?
DMV: Virginia is not a mandatory reportable state; per state law, it is at the physician’s discretion whether they initially report their patients. As Virginia’s Highway Safety Office, we would advise anyone who believes a driver is an imminent threat to public safety to arrange alternative transportation for the individual or contact their local police department.
DMV isn’t required to question the action a physician takes when they have concerns about the ability of one of their patients to safely operate a motor vehicle. DMV reviews each impaired driver report submitted by a physician and takes appropriate action.
Does the Medical Advisory Board review the case of every reported driver prior to issuing a notice of suspension or only after a driver wants to appeal the order?
DMV: DMV reviews cases of individuals who may have health or medical conditions that impair or hinder their safe driving. The review process ensures the safety of the individuals and all drivers sharing the road.
DMV’s goal is to allow individuals to drive for as long as they can safely operate a motor vehicle. A report of an impaired driver is reviewed in conjunction with our medical policies to determine whether to move forward with a medical review. The agency only intervenes if we have reason to believe that the individual may be an unsafe driver. DMV investigates reports and may require a driver to submit a medical and/or vision report from a healthcare provider, knowledge and/or skills testing, or to complete a driver evaluation conducted by a certified driver rehabilitation specialist.
If DMV’s investigation determines that the driver has a condition that affects driving ability, the agency may take one of several actions, based on the severity of the condition, such as restrict or suspend driving privileges or require periodic medical reports. If no such condition is found, no further action will be requested.
Cases are submitted to the Medical Advisory Board for review when the situation is not addressed by these policies or when a case has been referred for an informal conference during which the customer is able to present information as to why they contest the action/requirement imposed by DMV.
The 2013 Mature Driver Study: Is there Age-related Bias?
The result of studies in the U.S. and U.K. show that healthy older drivers are no more unsafe than other age groups, though the potential for death or serious injury resulting from an accident is increased because older drivers often aren’t as resilient as their younger counterparts and less able to survive serious injury. But as increasing numbers of mature drivers traverse our roadways (an estimated 57 million Baby Boomers will make up approximately a quarter of all licensed drivers by 2030), there has emerged a national discussion on how such a transformational event will impact public safety. In some states, the discussion has turned into a debate as stakeholders try to find a balance between individual freedoms and public safety.
In January 2013, as directed by the chairmen of the House and Senate Transportation Committees, the Virginia DMV established a stakeholder group to study “whether the commonwealth should adopt additional objective criteria in current license renewal requirements as a means of assessing mature drivers’ continued capability to remain active, safe, independent and mobile on the road as they age, and to better prepare the commonwealth for an aging driving population.” A group of over 40 stakeholders participated in the study, and their recommendations addressed three areas: Driver Licensing, Medical Review, Outreach and Education. The resulting was the Mature Drivers Study, 2013 Report.7
One of the most significant results of the study was the passage of legislation amending §46.2-330 of the Code of Virginia. Effective January 1, 2015, the statutory age for mandatory in-person license renewal for mature drivers was lowered from age 80 to age 75, and licenses issued to persons age 75 or older will be valid for no more than five years, as opposed to the current eight-year license. This legislation makes sense.
However, the study’s medical committee also discussed some rather slippery slope options that would certainly draw fire should they ever be seriously considered, such as providing confidentiality and immunity to all individuals who report a potentially impaired driver, not just medical professionals and relatives.
Senior advocate organizations like AARP support safe driving initiatives as long as they are based on the health and ability of the driver, not age.
AARP was one of the stakeholder organizations involved in the Mature Drivers Study. David DeBiasi, AARP Virginia’s associate state advocacy director, reports that to date, AARP Virginia is not aware of any age-related bias as a result of the study and that they do not see any legislative changes on the horizon that might unfairly impact older drivers in the commonwealth. Good news, for now.
Under current DMV policies, which are enabled by Virgina code, decisions about licensing can be made based on the opinions of a wide array of medical professionals, from general practitioners to pharmacists to nurse practitioners, most of whom have had little or no special training when it comes to assessing levels of cognitive impairment, let alone assessing driving skills or knowledge.
Under current Virginia code, there is no “standard” testing set forth to be adopted by the medical professionals administering such testing. The code allows medical professionals to devise and conduct their own testing. Further, there is no requirement for the professional to inform their patients that they are being tested or to advise them on possible outcomes or consequences of their testing.
New legislation is being considered this session which will address due process for all Virginia drivers as well as fair reporting and full disclosure from the medical community.
Del. Barry Knight, sponsor of the HB1494 bill, had this to say: “Currently, members of the medical profession have the ability to be both judge and jury when a driver’s license is at stake. This legislation will ensure that mature drivers will have a process to prove they have the ability to safely remain on the road. Our seniors have given a lifetime to our community, and it is important for them to retain their independence for as long as possible.”
The actual changes to Virginia code as submitted in Delegate Knight’s bill are found below.
Virginia Is a Mecca For Development Of Automated-Vehicle Technologies: A Potential Game-Changer For Mature Drivers
Virginia has always been at the forefront of implementing new transportation solutions, and we are committed to providing an environment in which industry leaders from the automated-vehicle realm can work to answer the needs of drivers.
—Aubrey Layne, Secretary of Transportation for the Commonwealth
In June 2015, Governor Terry McAuliffe announced a new partnership with the Virginia Department of Transportation and Department of Motor Vehicles permitting research and development for autonomous vehicles to take place in the commonwealth via special automated corridors and test facilities. This alliance further enhances Virginia’s standing as a high-tech idea incubator and laboratory for emerging unmanned systems, smart highways and intelligent vehicle safety technologies.
Autonomous and semi-autonomous innovations could be a game-changer for the nation’s growing number of older drivers. Approximately 45 million people in the U.S. are age 65 or older, a figure that stands to grow by another 27 million by 2030. About 36 million current older drivers still hold valid licenses, and about 80 percent of them live in car-dependent suburbs or rural areas—not cities with public transit.4 Chairman of the House Transportation Committee, Ron Villanueva, recently had the opportunity to test drive several autonomous and semi-autonomous vehicles. This is what he had to say: “Virginia is in full-throttle mode when in it comes to transportation innovation. We’ve made investments in many transportation sectors: construction and maintenance, the Port of Virginia, airports, rail and public transport. But there is an equal amount of attention focused on transportation safety and technology, which includes automatic vehicle systems. Collaborations with Virginia Tech’s Transportation Institute, VDOT, the auto industry and various transportation sectors have produced advancements in road construction materials, signage and markings. These advances make our roads safer for our citizens.
For mature drivers and permitted disabled drivers, autonomous and semi-autonomous vehicles will help make their driving more efficient and safe and provide welcome mobility and independence to citizens who might otherwise find their transportation options very limited. However, public policy and legislation surrounding these innovations is still being developed; we must ensure that when these new vehicles are on the road the safety of the public is paramount.”
By Beth Hester
[To read this complete article view page 54 in the Jan/Feb 2017 edition of Lynchburg Living]