Establishing regulatory protection barriers for older drivers

Seniors outlive their ability to drive safely by an average of seven to 10 years. The problem recently came to the fore in New Jersey, where in one week three drivers over the age of 90 were involved in tragic accidents, two of which were fatal.

In a forthcoming article, Sharona Hoffman and Cassandra Burke Robertson, professors of law at Case Western Reserve University School of Law, argue that the growing elderly population in the United States poses a serious threat to public safety. They argue that cognitive decline in older people—the gradual loss of mental abilities such as memory and concentration—impacts their ability to drive safely and increases their risk of accidents. Hoffman and Robertson propose changes to state laws to protect the public while ensuring that older people maintain their personal autonomy for as long as possible.

As they age, these people are at greater risk for cognitive decline. The extent of this decline can vary greatly. Some seniors can maintain a high level of functionality, while others experience complete impairment in daily activities, especially in the case of diseases such as Alzheimer’s and dementia.

Driving is a complex task that requires a variety of cognitive skills, including quick reaction times and spatial awareness. Older drivers who experience cognitive decline are more likely to fail road-legal driving tests and be involved in more car accidents, Hoffman and Robertson say. Despite these risks, between 22 percent and 46 percent of older people still drive.

Some states have tried to address this problem with their driver’s license renewal laws. Hoffman and Robertson, however, argue that many of these laws are not effective in identifying cognitively impaired drivers or assessing the ability of seniors to drive. Instead, they argue that these laws merely add requirements for older drivers, such as in-person renewals, more frequent renewals, or mandatory vision tests after a certain age.

Hoffman and Robertson acknowledge that creating comprehensive regulations for older drivers is difficult because cognitive decline varies among older people. Cognitive decline can begin at different ages and can progress rapidly or gradually over time. This variability creates challenges for legislators in establishing regulations that balance public safety risks with older drivers’ autonomy.

Indeed, “handing over your car keys may mean giving up your well-being,” warn Hoffman and Robertson.

Health declines accelerate when seniors stop driving because they lose the functional independence, personal autonomy, and opportunities for social interaction that are beneficial to their quality of life. These risks make family members reluctant to take the keys and deter seniors from voluntarily giving up driving, Hoffman and Robertson explain.

Hoffman and Robertson argue that states cannot rely on self-regulation to solve this problem.

Hoffman and Robertson instead recommend that states enact laws requiring physicians to refer patients diagnosed with cognitive decline for formal driving evaluations and to report patients who require driving restrictions to the Department of Motor Vehicles (DMV). DMV officials would then note those restrictions on the person’s license or, if necessary, revoke the license, Hoffman and Robertson suggest.

This approach addresses individual cognitive decline rather than imposing blanket regulations on the entire senior population, Hoffman and Robertson say. They argue that formal driving assessments will identify the specific needs and capabilities of each driver and provide targeted driving restrictions, which in turn will preserve seniors’ mobility while reducing safety risks. Bottom of the form

Doctors who fulfill their duty to refer patients would be immune from liability if their patient was involved in an accident, Hoffman and Robertson explain. By providing this protection, they argue, doctors would likely support the law and facilitate its passage.

Because the proposed law touches on sensitive issues of age and health status, Hoffman and Robertson warn that opponents could try to challenge it under the Equal Protection Clause of the 14th Amendment or the Health Insurance Portability and Accountability Act (HIPAA). But they say those challenges are unlikely to succeed.

First, states can defend their statutes against challenges under the Equal Protection Clause—which protects both disability and age discrimination from state action—by showing that “the statute is rationally related to a legitimate state interest.” Hoffman and Robertson argue that their proposed state law serves a “legitimate state interest” because it helps keep the roads safe.

Second, Hoffman and Robertson argue that HIPAA — which governs doctors’ disclosure of patient medical information — would not prevent their proposed legislation from being passed. They point out that HIPAA contains exceptions for disclosures without patient consent, including when the disclosure is required by law, necessary for a public health action, or necessary to avert a serious threat to health or safety. Hoffman and Robertson argue that their proposed legislation could fit into any of those exceptions.

With the population of older drivers expected to grow to an estimated 62 million by 2030, Hoffman and Robertson are calling on state lawmakers to consider the significant public safety risks posed by some older drivers. They are proposing a state law that would use the doctor-patient relationship to identify seniors experiencing cognitive decline and impose appropriate, tailored driving restrictions.