Could Your Driver's License Be At Risk?

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“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. 

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 (Code of Virginia §46.2-322 (A) (B)).

Grayson’s fight would take over a year from start to finish, including six months trying to 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 son 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” (Code of Virginia §38.2-602 & 46.2-322(A)).

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 driving 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 an 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 design 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 really 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 punch line. 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. We've outlined the comprehensive evaluations in a separate section 'Cognitive Screening 101'.

Additionally, why were family members excluded from the decision-making process when such important judgments 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 (AMA Physician’s Guide to Assessing and Counseling Older Drivers, and Driving and Dementia: A Guide for Health Care Professionals).

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.

Do you know someone who has experienced a license suspension under circumstances similar to Grayson’s? Share your comments with other Coastal Virginia readers below.

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