ADA Policy Statement on Sleep Disordered Breathing From a Lawyer’s Perspective by Ken Berley, DDS, JD, DABDSM


ADA policy statements have historically guided the evolution of our dental standards of care. The ADA House of Delegates adopted a policy on Sleep Disordered Breathing recently. Whenever the ADA publishes a policy statement, it is quickly discovered by plaintiff’s attorneys and becomes a resource for litigation. Therefore, it is vitally important for all dentists to understand the legal ramifications of the ADA policy statement and adopt in-office protocols and procedures to ensure compliance. There are eleven points in the whole document. Two issues, screening and use of home apnea testing by dentists, are getting the most attention, so I’ll give you my thoughts on them.
Before we delve into this subject, you should know that I am not opposed to this policy statement. I completely support the actions of the ADA and overall, I like the content of this policy statement. Dental sleep medicine has been the subject of significant controversy for too long regarding the use of home sleep testing equipment and the dentist’s role in the diagnosis of obstructive sleep apnea and sleep disordered breathing. The ADA policy statement on SDB seems to settle many of these questions.
For you to understand the implications of the ADA policy statement, you must also understand the legal concept of a “learned treatise.” A Learned Treatise is a document that is universally accepted within a profession and considered authoritative, as Evidence of the Standard of Care. When a document is recognized as a “learned treatise” in court, that document can be easily introduced into evidence and can be used during the trial to prove your case. For example, courts throughout the country have universally recognized Gray’s Anatomy textbook as a learned treatise, therefore, all plaintiff and defense attorneys have a copy which can be introduced in any trial where it is needed. An example of a learned treatise is 2010’s policy statement on screening for oral cancer. That document can be introduced in court and used against you if you find yourself defending a charge of malpractice for failure to screen for oral cancer.
That brings us to the new ADA Policy Statement on Sleep Disordered Breathing.

Can a Dentist Dispense an HSAT for the Diagnosis of Sleep Disordered Breathing?

I have been concerned at the number of dentists who are either treating “snoring” patients without diagnostic testing or are dispensing HSTs out of their offices for the diagnosis of OSA without a face-to-face examination by a sleep physician. While I agree that not every patient needs an overnight PSG to diagnose sleep disordered breathing, personally I would like to see a local Sleep Physician on your team, to provide the face to face examination and diagnosis. This cooperation between dentists and sleep physicians provides for the best patient care and you can legally share liability with that sleep physician.
ADA Policy Statement:
1. Dentists are encouraged to screen patients for SRBD as part of a comprehensive medical and dental history to recognize symptoms such as sleepiness, choking, snoring or witnessed apneas and an evaluation for risk factors such as obesity, retrognathia, or hypertension. These patients should be referred, as needed, to the appropriate physicians for proper diagnosis.
The ADA policy statement does not include any statement that could be construed as giving dentists the authority to dispense type 3 or type 4 patient monitoring for diagnosis of Sleep Disordered Breathing. As I write this I am anticipating the emails that I will receive from dentists who don’t want to refer to sleep physicians because they will not get their patients back to treat. You should be aware that there is a legal cause of action for “negligent failure to refer.” You can be sued for failing to refer a patient for care when the standard of care dictates that a referral is indicated. The diagnosing physician will prescribe the therapy she/he feels is best for the patient; the dentist’s disappointment for not being first line treatment is not a reason to withhold the referral. Every dentist treating Sleep Disordered Breathing should develop relationships with local sleep physicians to share liability.

HSAT/Pulse Ox Usage for MAD Titration

The American Academy of Sleep Medicine has repeatedly stated that dentists are inadequately trained and therefore, unqualified to use type 3 or type 4 testing equipment for any purpose. The AASM has even gone so far as to state that it is criminal for a dentist to even own home sleep testing equipment. This is particularly troubling given that research has repeatedly shown that oral appliance therapy is most effective when the appliance is titrated as a result of testing. It is my personal opinion that some level of overnight testing during the titration process improves patient outcomes. The ADA seems to agree with this position and has included a provision for testing during the titration of a mandibular advancement device.
The ADA Policy statement states as follows:
7. Dentists who provide OAT to patients should monitor and adjust the Oral Appliance (OA) for treatment efficacy as needed, or at least annually. As titration of OAs has been shown to affect the final treatment outcome and overall OA success, the use of unattended cardiorespiratory (Type 3) or (Type 4) portable monitors may be used by the dentist to help define the optimal target position of the mandible. A dentist trained in the use of these portable monitoring devices may assess the objective interim results for the purposes of OA titration.
With the publication of this statement, dentists are now authorized to possess home testing equipment and to utilize those devices for the titration of Mandibular Advancement Devices. The interesting thing is that New Jersey, North Carolina and Georgia have statutes or board opinions which are in direct conflict with this paragraph. This issue will need to be resolved. If you practice in a state that refuses to allow you to utilize type 3 or type 4 portable monitors, I would petition the state board for a review of the state statute in light of the ADA Policy Statement on Sleep Disordered breathing.

Duty to Screen for SDB

ADA policy statement includes these paragraphs addressing this issue for adults and children:
1. Dentists are encouraged to screen patients for SRBD as part of a comprehensive medical and dental history to recognize symptoms such as sleepiness, choking, snoring or witnessed apneas and an evaluation for risk factors such as obesity, retrognathia, or hypertension. These patients should be referred, as needed, to the appropriate physicians for proper diagnosis.
2. In children, screening through history and clinical examination may identify signs and symptoms of deficient growth and development, or other risk factors that may lead to airway issues. If risk for SRBD is determined, intervention through medical/dental referral or evidenced based treatment may be appropriate to help treat the SRBD and/or develop an optimal physiologic airway and breathing pattern.
For a dentist to be considered negligent and therefore, guilty of malpractice, a plaintiff’s attorney must establish that the dentist owed a “duty” to the patient to practice in a particular way and the dentist failed to do so, which resulted in injuries to the patient. (Duty, Breach, Proximate Cause and Damages) Here, the Policy Statement proclaims that all dentists are “encouraged” to screen each patient for SDB. In other words, “A Reasonable and Prudent Dentist in the same or similar circumstance would have screened for Sleep Disordered Breathing.” Therefore, if a dentist fails to screen for SDB, this policy statement could be introduced into evidence as a learned treatise to establish screening as his standard of care. Once the duty to screen is established and breach of that duty shown, the dentist will be legally responsible for any damages which are directly and proximally caused by the breach.
As a hypothetical, let’s assume that an elderly male obese patient presents to his dentist for a checkup. He has a history for refractory high blood pressure, coronary artery disease and diabetes. Oral examination reveals significant signs of bruxism with an enlarged and scalloped tongue. The patient falls asleep during the dental examination. The examining dentist does not record any finding of sleep disordered breathing and is unable to prove that routine screening for sleep disordered breathing occurs within his practice. If that dental patient falls asleep while driving, could the dentist be held liable for “Negligent Failure to Screen for Sleep Disordered Breathing”? The good news is that no such lawsuit has occurred to date. However, with the adoption of the ADA policy statement on SDB, this type of suit is theoretically possible.
It is projected that approximately 10% of all children have sleep disordered breathing. Some of these children are easy to identify due to very enlarged tonsils or chronic mouth breathing habits. They may present with signs of excessive wear on their baby teeth or a diagnosis of ADHD. Each dental office must become familiar with the typical signs and symptoms of pediatric SDB and develop a protocol for screening these young patients.
You should be aware that the law does not require that you successfully screen and identify every patient in your practice that has an airway problem. That would be unreasonable! However, with the adoption of the ADA statement, the law will require that you systematically attempt to identify patients with airway problems. If you miss a patient who has SDB, you will not be found to be negligent if you routinely performed a reasonable screening. Just make sure you screen.

Screening Protocol

What constitutes a reasonable screening protocol? In my opinion every dental office should incorporate questions which might expose SDB into their health history. Here are some important questions – there are others:
1. Do you ever wake up during the night gasping for breath?
2. Has anyone ever said that you stop breathing when you are asleep?
3. Do you snore?
4. Has anyone ever complained about your snoring?
5. Have you been diagnosed with Sleep Apnea?
6. Have you ever worn a CPAP (Continuous Positive Airway Pressure) device?
7. Are you sleepy during the day?
8. Do you feel the need to nap to make it through your day?
Additionally, it would be ideal if all patients were asked to complete an Epworth Sleepiness Scale and/or a STOP-BANG Questionnaire on a yearly basis. If these screening steps were taken, many patients at risk for SDB within any dental practice would be identified. These actions would easily satisfy the legal requirements for screening.
If you are one of the many dentists who are scratching your head at this point trying to figure out what I am talking about, you need to find a course on screening and treating Sleep Disordered Breathing. Obviously in a short article, I cannot cover all the techniques and methods of screening for this serious condition. I would encourage you to make education in this area a priority. The treatment of adult OSA with oral appliance therapy is the fastest growing area of dentistry. Become part of the solution for these patients.
In conclusion, sleep disordered breathing is now considered to be within the scope of practice of all dentists. As a matter of law, we are required to screen for any disease or condition that falls within our scope of practice. We are not required to treat all conditions that fall within our scope, but we are required to recognize the condition and provide appropriate treatment or referral. With the millions of undiagnosed patients who routinely receive dental care, we are in a unique position to positively affect the health and longevity of these patients. Go screen your patients and save lives!

The final version of the ADA Policy Statement

Policy Statement on the Role of Dentistry in the Treatment of Sleep-Related Breathing Disorders
Sleep related breathing disorders (SRBD) are disorders characterized by disruptions in normal breathing patterns. SRBDs are potentially serious medical conditions caused by anatomical airway collapse and altered respiratory control mechanisms. Common SRBDs include snoring, upper airway resistance syndrome (UARS) and obstructive sleep apnea (OSA). OSA has been associated with metabolic, cardiovascular, respiratory, dental and other diseases. In children, undiagnosed and/or untreated OSA can be associated with cardiovascular problems, impaired growth as well as learning and behavioral problems.
Dentists can and do play an essential role in the multidisciplinary care of patients with certain sleep related breathing disorders and are well positioned to identify patients at greater risk of SRBD. SRBD can be caused by a number of multifactorial medical issues and are therefore best treated through a collaborative model. Working in conjunction with our colleagues in medicine, dentists have various methods of mitigating these disorders. In children, the dentist’s recognition of suboptimal early craniofacial growth and development or other risk factors may lead to medical referral or orthodontic/orthopedic intervention to treat and/or prevent SRBD. Various surgical modalities exist to treat SRBD. Oral appliances, specifically custom-made, titratable devices can improve SRBD in adult patients compared to no therapy or placebo devices. Oral appliance therapy (OAT) can improve OSA in adult patients, especially those who are intolerant of continuous positive airway pressure (CPAP). Dentists are the only health care provider with the knowledge and expertise to provide OAT.
The dentist’s role in the treatment of SRBDs includes the following:
1. Dentists are encouraged to screen patients for SRBD as part of a comprehensive medical and dental history to recognize symptoms such as sleepiness, choking, snoring or witnessed apneas and an evaluation for risk factors such as obesity, retrognathia, or hypertension. These patients should be referred, as needed, to the appropriate physicians for proper diagnosis.
2. In children, screening through history and clinical examination may identify signs and symptoms of deficient growth and development, or other risk factors that may lead to airway issues. If risk for SRBD is determined, intervention through medical/dental referral or evidenced based treatment may be appropriate to help treat the SRBD and/or develop an optimal physiologic airway and breathing pattern.
3. Oral appliance therapy is an appropriate treatment for mild and moderate sleep apnea, and for severe sleep apnea when a CPAP is not tolerated by the patient.
4. When oral appliance therapy is prescribed by a physician through written or electronic order for an adult patient with obstructive sleep apnea, a dentist should evaluate the patient for the appropriateness of fabricating a suitable oral appliance. If deemed appropriate, a dentist should fabricate an oral appliance.
5. Dentists should obtain appropriate patient consent for treatment that reviews the treatment plan and any potential side effects of using OAT and expected appliance longevity.
6. Dentists treating SRBD with OAT should be capable of recognizing and managing the potential side effects through treatment or proper referral.
7. Dentists who provide OAT to patients should monitor and adjust the Oral Appliance (OA) for treatment efficacy as needed, or at least annually. As titration of OAs has been shown to affect the final treatment outcome and overall OA success, the use of unattended cardiorespiratory (Type 3) or (Type 4) portable monitors may be used by the dentist to help define the optimal target position of the mandible. A dentist trained in the use of these portable monitoring devices may assess the objective interim results for the purposes of OA titration.
8. Surgical procedures may be considered as a secondary treatment for OSA when CPAP or OAT is inadequate or not tolerated. In selected cases, such as patients with concomitant dentofacial deformities, surgical intervention may be considered as a primary treatment.
9. Dentists treating SRBD should continually update their knowledge and training of dental sleep medicine with related continuing education.
10. Dentists should maintain regular communications with the patient’s referring physician and other healthcare providers to the patient’s treatment progress and any recommended follow up treatment.
11. Follow-up sleep testing by a physician should be conducted to evaluate the improvement or confirm treatment efficacy for the OSA, especially if the patient develops recurring OSA relevant symptoms or comorbidities.

Dr. Ken Berley is a practicing general dentist with over 30 years of private practice experience focusing on complex reconstruction and 20 years of experience as an attorney licensed to practice law in Arkansas and Texas. He has extensive experience as a litigator and was a full partner in Travis, Borland and Berley, Attorneys’ at Law before moving to Northwest Arkansas. Dr. Berley is a Diplomate of the American Sleep and Breathing Academy and a Diplomate for the ABDSM. He lectures in the area of sleep medicine risk management. He has provided TMD treatment for many years and has incorporated Sleep Medicine in his office for the last 3 years.

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