Driver with a Disqualifying condition – FMCSA vs. HIPAA
Marie and Suzanne wonder:
Q: Was wondering what action a health care organization should take if they become aware a DOT driver has a disqualifying condition and still driving. The driver sought urgent care treatment for a injury that occurred secondary to a self reported seizure and known seizure disorder. During the course of the urgent care visit the provider became aware the patient was a current DOT driver. I advised them to inform the driver he is not qualified to drive, must see his DOT medical examiner, and document this in the record he has been informed. In addition to this is there an obligation to notify his company? Or the DOT?
This was my answer, but did I use the term “trumps” inappropriately?
A: Confirming with FMCSA, you may alert the employer and the state DMV and report directly to FMCSA. You may even remain anonymous if desired. Public safety trumps HIPAA concerns in these instances.
Answer From a Driver Advocate
Then I got this response from Bob Stanton, a highly respected driver advocate (himself a trucker), with whom I have discussed other driver health related topics (Bob is Co-Coordinator of Truckers for a Cause, A patient support group for truck drivers with sleep apnea. Bob also works part time as Driver Liaison for Dedicated Sleep, a firm that handles sleep apnea testing and treatment in transportation. These views are his own and not of Dedicated Sleep):
Fyi. From a patient advocate perspective your answer here has issues. While FMCSA may have an opinion HHS-OCR enforces HIPAA and your answer creates a HIPAA violation .
“Confirming with FMCSA, you may alert the employer and the state DMV and report directly to FMCSA. You may even remain anonymous if desired. Public safety trumps HIPAA concerns in these instances”
HIPAA restricts the release of PHI to ONLY when the patient presents an imminent hazard to the general public. In this case the release of PHI is limited to “enforcement agencies able to take action to mitigate the risk to the public “. Furthermore the release shall be limited to only that information necessary to mitigate the risk.
Under NO circumstances absent a HIPAA release from the patient can a medical professional release information to an employer. Even if it involves a CDL holder .
Whether or not a medical professional can release PHI to state licensing authority is a state specific question. Unless the state has a statute requiring reporting of medical conditions there would be a HIPAA violation. Which specific conditions can and should be reported to SDLA varies. Many states have no medical conditions reporting requirements. In those states absent a statute requiring reporting you have a HIPAA violation . Many states reporting by medical professionals is voluntary and the only protection is for civil liability.
Just because a condition might be DQ for a Dot medical card does not rise to the level needed to meet the HIPAA release requirements . The HIPAA exemption was crafted to address mental health professionals with patients planning suicidal actions taking others with them. The HIPAA exemption does not cover the scenario in your question.
“Public safety trumps HIPAA concerns in these instances.”
Public Safety does NOT trump HIPAA. Multiple court cases involving medical personnel becoming aware of alcohol impairment during emergency room treatment has confirmed this.
The appropriate procedure for a medical professional who becomes aware of a CDL holder whose medical condition poses an imminent threat to public safety would be to contact the Fmcsa Office of Medical Programs ( Fmcsamedical@dot.gov ) if Fmcsa concurs they can issue an imminent hazard out of service notice . This would also prevent the CDL holder from getting a license from a different state or changing employers .
I happen to be working with a good health care lawyer on a state by state analysis of reporting requirements on medical conditions to SDLA. It’s in progress and we’ll probably publish it when done.
In sleep medicine we regularly deal with drivers diagnosed with sleep apnea but either refusing or non-compliant with treatment .
If a medical professional followed your advice and released PHI to an employer or SDLA, my experience is the medical professional would be looking at fines and penalties from HHS-OCR .
I’m not sure who you got your information from at FMCSA but . … I’m looking at this from a driver’s privacy rights advocate standpoint. In reality it would require taking a test case to court to get a definitive legal opinion. There are several driver’s rights group like OOIDA that would help with legal costs.
FMCSA Rules vs HIPAA Debate Ensues!
And again my response:
Bob, great to have your voice on this thread. Perhaps my use of the term “trumps” is inaccurate.
There clearly are allowances, however to alert law enforcement and any other entity likely to intervene:
(from HHS):
Serious Threat to Health or Safety. Covered entities may disclose protected health information that they believe is necessary to prevent or lessen a serious and imminent threat to a person or the public, when such disclosure is made to someone they believe can prevent or lessen the threat (including the target of the threat).
ref: http://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html
ref: http://www.hhs.gov/sites/default/files/ocr/office/lettertonationhcp.pdf
I’m not sure I agree with your statement “Under NO circumstances absent a HIPAA release from the patient can a medical professional release information to an employer. Even if it involves a CDL holder”
An employer would be someone who can “prevent or lessen the threat” by taking the driver off the road or requiring them to get a “post-illness” recertification exam whereby the medical examiner can be alerted that there is new medical information available for them to review. The employer could be given only the information that the driver appears to have a disqualifying condition, not specific details of the condition, and leave it up to the medical examiner to gather the details.
I also don’t agree with your statement: “The HIPAA exemption was crafted to address mental health professionals with patients planning suicidal actions taking others with them. The HIPAA exemption does not cover the scenario in your question.”
In my professional opinion, if I had reason to believe a patient that was a commercial driver just had a seizure and planned to get back on the road, I would consider this an imminent hazard/threat to the public and would alert those in a position to intervene. I would certainly attempt to get a release from the patient to disclose any information but believe I would have an obligation to act if I felt the driver was not cooperative with medical advice to not drive.
The most straightforward procedure is to contact the FMCSA Office of Medical Programs, but if the threat is imminent, it may be felt that local law enforcement/DMV and the employer are a more expedient method of ensuring the driver doesn’t get in his big rig, or any vehicle, and have a seizure and kill someone tomorrow vs. waiting for FMCSA to go through it’s process.
This is the exact response I got from the FMCSA office of medical programs:
You can notify the employer and the state dmv with the information that you have. You can also notify FMCSA. You may do so anonymously. Provide any information that you have on the circumstance and the individual.
In your analysis of reporting to an employer .
The driver involved is an owner operator with their own operating authority ( a 1 truck trucking company ).
About 50% of the US trucking capacity are owner operators.
Reporting to an employer accomplishes nothing.
Nothing prevents the driver from seeking employment elsewhere without disclosure of the medical condition. Therefore an employer is not an entity able to prevent harm.
If reported to state driver’s license authority SDLA nothing prevents the driver from moving and getting licensed in a different state.
“a patient that was a commercial driver just had a seizure and planned to get back on the road, I would consider this an imminent hazard/threat to the public and would alert those in a position to intervene”
This starts to get into the specifics of the case, legal, and expert medical opinion .
In cases where I have been involved in advocacy for the driver , when the medical professional’s in house counsel was brought in, their own in house counsel felt moderate to severe untreated sleep apnea even with a CDL holder did not rise to the level of imminent threat. Their in house counsel did not okay a release of PHI except to FMCSA .
Given my experience the legal folks would probably not agree the case outlined meets the imminent threat. Threat yes, imminent threat no . But now we’re into opinion not facts.
Another consideration is the general policy of HHS-OCR to limit release of PHI to the minimum necessary.
If you limit release to just Fmcsa you have fewer risks of HIPPA violation or complaints. You give the driver’s lawyers fewer tools to work with.
Fmcsa can act quickly in issuing imminent hazard out of service notices. They prevent a CDL holder from operating anywhere in North America, are distributed to all 50 states, and come up anytime law enforcement runs a normal drivers license check.
No disrespect intended to whoever at Fmcsa responded to your question. But its kind of like asking a neurologist a question about diabetes treatment.
The real subject matter experts are lawyers who defend medical professionals in HIPPA violation cases or the enforcement staff in HHS-OCR. The problem is HHS-OCR will only respond to actual complaint cases. I’ve been through this with good lawyers who specialize in health care law.
What we want to do (report to employer, SDLA , and FMCSA ) might not be the “best” thing to do.
It’s the kind of topic medical examiners need to understand all sides of the problem . As an advocate for drivers I wouldn’t want to end up assisting driver with HHS-OCR complaints against a well intentioned but misinformed medical examiner . I don’t want to think how an ambulance chaser type lawyer would rake take them to the cleaners
Great discussion gentlemen. It seems to leave off with comparing apples to oranges when comparing OSA to Seizure. Both are concerning conditions yet a seizure is definitely a more imminent threat to public safety. OSA falls under the recommendations by the medical guidelines whereas Epilepsy falls under specific medically disqualifying conditions. I cannot help but recall a photo collage of numerous victims killed in trucking accidents hanging outside the elevators of the medical division at the DOT in Washington, DC. Daytime sleepiness can be recognized by a driver whereas a condition like narcolepsy or epilepsy poses a more imminent threat to public safety. Keep in mind that there are often little or no prodromal symptoms prior to on e of these events. There are definitely times when everyone should be notified if a driver is on the road with a specific medically disqualifying condition.
“By regulation, Specific Medically Disqualifying Conditions Found Under 49 CFR 391.41 are Hearing Loss, Vision Loss, Epilepsy and Insulin Use. Drivers who require a Diabetes or Vision exemption to safely drive a CMV in addition to those pre-printed on the certification form are disqualified until they receive such an exemption.” https://www.fmcsa.dot.gov/faq/what-medical-conditions-disqualify-commercial-bus-or-truck-driver
Thank you for the opportunity to dialogue. ~
What extra legal rights does the employer gain to an employees personal and health information when the employer schedules and pays the health care provider directly for the DOT physical exam? There must by some legal advantage for the employer because they insist and even make it company policy that employees allow them to schedule and pay directly for the DOT exam.
There is often an authorization that drivers sign to allow the employer to have the “long form.” Some motor carriers have insisted on this so they can double check that there is nothing that would make the driver unsafe. FMCSA only requires that the certificate go to the motor carrier/employer and the physical form (MCSA 5875) stay with the examiner, and of course the driver may have a copy and this is what I recommend.
Motor carriers should find examiners they are confident in to make the determinations and not get into potential discrimination issues by having access to other personal health information. If they are insisting on the physical form, it should be kept in locked medical files and reviewed only by licensed medical staff within the company for safety and employee health issues and not by supervisors or others, just as with any other company dealing with personal health information.
The online DOT exam application we use is another way motor carriers can be confident that nothing “slips by” the examiner by electronically double checking that all required responses are filled in, examiners are alerted to any potential disqualfiers like medications or certain conditions, automatically files the physical exam form “virtually”, delivers the certificate to the motor carrier and automatically uploads the pertinent information to the national registry for the medical examiner.
I was under the impression that this was a regulatory compliance issue and therefore is not covered by HIPAA. In my state of New Mexico, the DOT exam does not create a doctor patient relationship. When a driver gets a commercial drivers license they should understand that they give up some personal rights in order to comply with regulatory guidelines.