The state of Michigan joined more than two dozen states in passing legislation to permit reporting of unsafe drivers by healthcare providers. Pursuant to Michigan Public Acts 354 and 355 of 2012, signed into law in late December of 2012, physicians and optometrists may now report information regarding a patient’s mental or physical qualifications to operate a motor vehicle to the Secretary of State. The new law, codified at MCL 333.5139 (and correlating with MCL 257.362 which includes Michigan driver’s license qualifications), is summarized below.
Episodes Affecting Safe Motor Vehicle Operation
The purpose of the law is to allow for reporting of a patient’s mental or physical qualifications that may affect his/her ability to safely operate a motor vehicle. Specifically, the report should specify an “episode” that affects a patient’s mental or physical qualifications to operate a vehicle. An episode includes:
o A condition causing or contributing to loss of consciousness, blackout, seizure, fainting spell, syncope, or other impairment of level of consciousness;
o An experience causing impairment of an individual’s driving judgment; and o Impairment of vision.
No Affirmative Obligation to Report or Warn
Physicians and optometrists have no affirmative obligation to report or warn under the statute. All reporting is voluntary. Physicians and optometrists who choose not to report under this statute are specifically immune from any criminal or civil liability to the patient or a third party injured by the patient’s actions. The same immunity applies to any report under the statute made to the secretary of state.
Reporting and Minimum Recommendations
Reports made to the secretary of state may be made for the purpose of initiating or contributing to an examination of a patient’s mental or physical qualifications to drive. In the report the physician or optometrist must recommend a period of suspension of at least 6 months (12 months for a commercial license). Thus, a reporter should consider whether the medical condition or “episode” underlying the report merits a suspension of at least 6 months because any report submitted under the statute must recommend at least a 6 month suspension.
Public Act 355 explicitly states that reports submitted to the secretary of state are confidential. For purposes of reporting under this statute, regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) permit such disclosure if the reporter believes in good faith that the disclosure is necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public and the disclosure is to a person or persons reasonably able to prevent or lessen the threat. See 45 CFR 164.512(f).
Note that the statute allows for reporting to the secretary of state and warning third parties. While reporting to the secretary of state seems to fit within the permitted disclosure for a threat to health or safety, a physician or optometrist should ensure prior to disclosing protected health information to third parties under the Michigan statute that such a disclosure complies with HIPAA as well.
As with any disclosure that may implicate HIPAA, it may be wise to seek assistance from health care counsel to ensure compliance. For more information regarding Public Acts 354 and 355 of 2012, or other HIPAA-related issues, contact Abby Pendleton, Esq. at (248) 996-8510 or firstname.lastname@example.org