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Dentist Seeks Guidance When Patient's Cognitive Health Becomes A Factor

SACRAMENTO, California — Throughout the business week, California Dental Association (CDA) Practice Support experts answer questions submitted by members via the "Ask an Expert" feature. Practice Support staff then select one question and answer to be highlighted on Page 2 in every issue of the CDA Update. The question is then archived online for the benefit of other members. But occasionally, a question or the recurrence of questions along the same theme prompts the need for a deeper probe.

Here is one such question:

I have a long-time patient who in the last year has become increasingly forgetful. I am unaware of any family or close friends involved in his care. With whom may I discuss my concerns about the patient's cognitive health? I am concerned not only about the patient's well-being but also my liability if there is a question as to the patient's consent to treatment.

Given the legal complexity of the question, CDA Regulatory Compliance Analyst Teresa Pichay ultimately had a long conversation with the dentist to gather more information. The dentist expressed concerns about her potential liability should the patient — with diminished mental capacity — consent to treatment, but also sought clarity about what is allowable under the Health Insurance Portability and Accountability Act. The federal HIPAA privacy rule is intended to properly protect individuals' health information by limiting the circumstances in which health care providers and other HIPAA-covered entities can disclose such protected information, or PHI.

The dentist divulged in her conversation with Pichay that, after deliberating, she had approached the patient's daughter, also a patient of the practice, to discuss her concern about the patient's cognitive health.

"I reassured her that what she did was OK under HIPAA because she had utilized her professional judgement to ensure appropriate care for the patient," Pichay says. And with that, the "short" answer was published:

If the patient has provided you with the name of his physician, you may contact the physician to discuss your concerns. It may be that the physician is aware of the patient's situation and is able to share information with you. Also consider asking the patient if there is anyone with whom you may speak regarding his care, for example, if your office is unable to contact the patient. Finally, if you believe the patient's cognitive health is so far diminished that the patient is unable to safely care for himself, contact your county's conservator office.

Privacy rule a balancing act of interests

The U.S. Department of Health and Human Services in its HIPAA FAQ for Professionals confirms that a health care provider can share a patient's health information with a family member, friend and possibly others involved in the patient's care "as long as the health care provider determines, based on professional judgement, that it is in the best interest of the patient."

The HIPAA privacy rule is therefore intended to not only protect a patient's health information as part of its goal, but to allow the communication and exchange of health information that is necessary to provide a patient with high-quality care. In its own summary of the rule, the HHS states that the rule "strikes a balance that permits important uses of information, while protecting the privacy of people who seek care and healing."

It remains that the dentist who contacted CDA Practice Support took permissible action under HIPAA, but Pichay stresses that such action should be taken only after the dentist is unable to first discuss the patient's condition with the patient's physician. In this case, the dentist did not have the name and contact information of the patient's physician.

"Managing a patient during that period when the patient exhibits symptoms of cognitive decline but there is no diagnosis is likely to be the main challenge for dentists," Pichay acknowledges. "Once a diagnosis is made, the dentist will have a better understanding of how to manage the patient."

In a similar situation, a patient may present for treatment and the dentist will notice that the patient has had a recent surgery or a hospitalization. Sheila Davis, assistant vice president of Claims and Risk Management at The Dentists Insurance Company (TDIC), cautions, "If the information the patient provides upon the dentist's questioning is insufficient or seems inconsistent, the dentist should check with the patient's physician to receive an update on the patient's current status and specifically whether he or she is taking any new medications that may alter the proposed dental treatment for the patient." As part of this, potential drug interactions — between medications the dentist may prescribe and any new medications the patient is taking — would be considered.

HHS makes two important stipulations that dentists should follow before discussing their concerns about a patient's health status with family members, friends or others involved in the patient's care: 1) They should only discuss the information that the family member, friend or other person involved in the patient's care needs to know. 2) If applicable, such as in the case of a patient who is unconscious or sedated, a dentist or other health care provider can elect to wait until the patient has an opportunity to agree to the disclosure of information. Dentists are not obligated by HIPAA to share a patient's health information in these situations.

Find more Q&A with the CDA Practice Support experts at cda.org/ask. Also find HIPAA compliance resources. To speak with a TDIC Risk Management analyst, call (800) 733-0633.

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