HSAT Usage: Are We There Yet?

by Ken Berley, DDS, JD, DABDSM
The turf war continues and sadly, nothing has been decided. Almost daily I’m asked by a dental client why a dentist cannot diagnose OSA or Snoring. Many of my clients want to be able treat their patients who complain of chronic snoring without referring that patient to a sleep physician. Many dentists believe that an in-lab sleep study is unnecessarily costly and may result in some patients being placed on CPAP who could easily be treated by Oral Appliance Therapy. In response to this growing demand for sleep testing, a cottage industry has emerged. Home Sleep Apnea Testing (HSAT) companies are now selling testing equipment and encouraging dentists to test their screened patients for Sleep Related Breathing Disorders (SRBD). Dentists determine the need for a sleep test, then prescribe an HSAT to determine the existence and severity of the patient’s SRDB. Frequently, but not always, dentists will have a Board-Certified Sleep Physician review the test and provide a diagnosis.
In direct response to the actions of some dentists who are circumventing Sleep Physician examinations and supervision, the AASM has enlisted the American Medical Association to define what actions constitute the practice of medicine.

AMA resolution and AASM advocacy defend the sleep profession

The American Academy of Sleep Medicine (AASM) has begun a new nationwide initiative to defend the scope of practice of physicians and advanced care providers who manage patients with obstructive sleep apnea from encroachment by dentists and other practitioners who are not trained or qualified to diagnose a medical disease.
The AASM distributed to every state medical board a copy of the American Medical Association (AMA) resolution, Appropriate Use of Objective Tests for Obstructive Sleep Apnea (H-35.963).
The resolution was introduced in November 2017 at the Interim Meeting of the American Medical Association, where it was adopted by the AMA House of Delegates. The adoption of the resolution followed the publication in October of the AASM position statement on the clinical use of a home sleep apnea test.
“Obstructive sleep apnea is a potentially lethal disease, so it is critical to ensure that patients receive the highest quality of care from medical providers who are licensed to practice medicine,” said AASM President Dr. Ilene Rosen.
“Sleep apnea commonly occurs along with complex comorbidities such as hypertension, coronary artery disease, and pulmonary disease, all of which require accurate identification, effective treatment and long-term management from a licensed medical health care provider.”
AMA resolution H-35.963 states:
“It is the policy of our AMA that:

  1. Ordering and interpreting objective tests aiming to establish the diagnosis of obstructive sleep apnea (OSA) or primary snoring constitutes the practice of medicine;
  2. The need for, and appropriateness of, objective tests for purposes of diagnosing OSA or primary snoring or evaluating treatment efficacy must be based on the patient’s medical history and examination by a licensed physician; and
  3. Objective tests for diagnosing OSA and primary snoring are medical assessments that must be ordered and interpreted by a licensed physician.”

The AASM has historically taken the position that only a Sleep Physician who is Board Certified has the knowledge and training to order a sleep study and diagnose SRBD. Now the AMA has joined the AASM in condemning the actions of dentists in providing sleep testing and SRBD diagnosis. This restriction on sleep testing with type 3 and type 4 devices has brought into question actions by some dentists who order HSATs. Readers should be aware that the legality of dentists ordering a sleep study for diagnostic purposes has not been determined.
If you are screening your patients and ordering a HSAT to diagnose whether your patient has SRBD, you are at risk of being charged with practicing outside your Scope of Practice and Practicing Medicine without a license.
Pennsylvania Case: After the AASM/AMA Policy statements on HSAT usage was published, complaints were filed with the Pennsylvania Dental Board and the Pennsylvania Medical Board accusing Dr. X a Pennsylvania general dentist, of practicing outside the scope of his dental license and practicing medicine without a license. Dr. X routinely screened his patients for SRBDs and dispensed an Ares HSAT to test his patients. Each sleep study was scored and diagnosed by Dr. Chandra-Ali, a board-certified sleep physician who worked for the testing company. Dr. Chandra-Ali had a Pennsylvania medical license. Dr. X relayed the diagnosis of Mild OSA to his patient who then felt compelled to initiate the respective complaints with the Pennsylvania Medical and Dental Boards. The Boards had been placed on notice by the AASM/AMA statement on SRBD, therefore Dr. X was subjected to a full investigation of this matter. The biggest area of concern for Dr. X was the fact that practicing medicine is a criminal act in Pennsylvania and subject to all associated remedies.
As the investigation unfolded, Dr. X was allowed to submit a legal brief about the current state of affairs regarding HSAT testing. Both Pennsylvania boards were made aware of the turf battle that currently rages between DSM providers and Sleep Physicians. Based on the facts submitted, the respective boards dropped the matter. This issue caused Dr. X to suffer physically, emotionally and financially due to his decision to provide HSAT testing. This matter was completed and recorded on June 7, 2018, therefore, this information is timely.
 

It is essential to establish protocols with your referring physicians and resolve any issues that they might have regarding HSAT usage.

I understand many sleep testing companies are encouraging dentists to provide the identical care that was provided by Dr. X in the above case. I know that numerous CE providers have endorsed this protocol to jump start a DSM practice. I understand your frustration with sleep physicians who don’t respect you as sleep professionals and will not refer, however, you must be aware that there is still risk.
What I expect to happen is that some poor dentist will be charged with practicing medicine without a license and his state board will try to make an example out of him. Ultimately, the case may terminate at the State Supreme Court. That case will serve as a precedent and give us some direction for the future. However, you don’t want to be the unfortunate dentist who is charged and pays to set that precedent.

Can a dentist utilize HSAT or Pulse oximetry to titrate mandibular advancement appliances?

Here the question is easier to answer. While the American Academy of Dental Sleep Medicine has consistently denounced the use of any type of testing or oximetry, the ADA has now published a policy statement which specifically authorizes the use of Type 3 and Type 4 testing for MAD titration purposes.
The ADA Policy Statement on the Role of Dentistry in the Treatment of Sleep-Related Breathing Disorders states:
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 cardio- respiratory (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.
In a court of law, the ADA policy statement would be introduced as a learned treatise and I feel comfortable that HSAT/Pulse Ox usage would be found to be within the scope of practice of a dentist trained in the usage of such devices.

Can a dentist utilize HSAT or Pulse Oximetry to screen dental patients of SRBD?

This is a much harder question to answer. This issue has not been adjudicated. Two states (Georgia and North Carolina) have placed dentists on notice that this act may exceed the scope for general dentists. Both the AASM and AADSM have published policy statements condemning this practice.
In response to the position of the AASM, screening products have been developed such as the high-resolution pulse oximetry (HRPO), which are specifically designed to utilize bruxism along with the patient’s Oxygen Desaturation Index (ODI) to screen patients for SRDB. Here the argument is that oximetry is not diagnostic of OSA, therefore these screening tests do not rise to the level of a “Sleep Test” for the purpose of diagnosing OSA. The legality of this screening has NOT been tested yet. However, if you live in North Carolina, Georgia or New Jersey, I would not utilize HRPO, HSAT, or similar devices for screening patients for SRBD or MAD titration.

Talk to Your Sleep Physicians!

You should be aware that most sleep physicians do not know about this controversy. They are too busy treating patients to worry about how we titrate our patients and screen for SRBDs. However, in my home state of Arkansas, the State Dental Board has not addressed HSAT usage at any board meeting. However, since anyone can file a board complaint, in an effort to minimize the risk of an adverse board ruling, I contacted my referring sleep physicians and took them to dinner to discuss these recently published policy statements. At dinner I presented the AMA/AASM Position Paper and the ADA Policy statement and explained how these policy statements were in direct conflict. For clarity you need to understand that I am the number one referral source for all these sleep physicians. Additionally, they are all well aware of how I utilize HSAT and HRPO in my office and the results that we achieve with MAD therapy. After discussing these issues, we worked out the protocol that we would follow in Northwest Arkansas.
In my opinion, it is essential to establish protocols with your referring physicians and resolve any issues that they might have regarding HSAT usage. My sleep physicians expressed a desire for me to rely on the ADA Policy Statement and continue to use testing to titrate our patients. If the Arkansas state board were to question my use of testing, I can rely on the support of my sleep physicians and the protocols that we have agreed to implement in Northwest Arkansas.
In conclusion, given the fact that nothing has been settled regarding HSAT usage in the treatment of SRBDs, any dentist who chooses to utilize HSAT or Pulse Oximetry should proceed with caution. Make sure that your state has not recorded a board opinion or statute restricting HSAT usage. Have a discussion with your referring physicians regarding your screening and titration protocols. If they have any objection to the usage of testing, follow their recommendations.
Finally, regardless of what you have been told by salesmen who want you to provide testing and diagnosis for your patients, you are the one with a license to practice dentistry. You will be the one who will suffer if your state board wishes to make an example out of you. Personally, I do not use an HSAT to diagnose my patients. I refer all patients to a local sleep physician, and we work together to provide the best care possible for our patients. Reciprocal referrals will allow me to sustain a long-term sleep practice. Therefore, my advice is to develop a good relationship with your local sleep physicians and don’t provide in-house SRBD diagnosis. This will keep you out of trouble because, “We are NOT there yet!”

Dr. Ken Berley has practiced dentistry in Arkansas for over 35 years and practiced law for over 22 years and is licensed in Arkansas and Texas. He is Diplomate of the American Board of Dental Sleep Medicine and a Fellow of the American College of Legal Medicine. For the past 10 years, he has focused on the practice of sleep disordered breathing and has developed many of the forms and consents routinely used in sleep medicine. Dr. Berley and his wife Patty, own Berley Consulting, providing mentoring, training and forms for those practitioners wishing to take their DSM practice to the next level.

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