Getting Medical Info Without Violating the Law

Saturday, October 26, 2002 | 0

Certain laws have converged to make it difficult for employers to keep tabs on their workers' compensation claims by limiting the amount and type of medical information that can be received from claims administrators. However, some proactive employers have devised strategies to ensure that they get the information they need to manage claims, while ensuring injured worker medical privacy as well as compliance with the law.

While the preamble to the federal Health Information Privacy and Portability Act (HIPAA) excludes workers' compensation, many physicians still erroneously believe that HIPAA restrictions apply to all lines of insurance and not just health coverage.

California employers specifically, under the provisions to be active under AB 749 passed in February, have a right to diagnosis as well as the treatment plan for an injured worker. However, exactly what information an employer will be able to get is dependent largely on the carrier's disclosure policy, or the policy established by a self-insured's risk management department and third party administrator (TPA).

The employer has an obligation to the injured worker to provide the best quality medical care available under the work comp plan in place, as well as return that employee to gainful employment as soon as possible. Employers argue that, as a result, they need access to certain medical information. AB 749 specifically provides that medical information related to the diagnosis of the injury can be disclosed only if it will affect the employer's premium and that medical information necessary to modify an employee's workplace can also be disclosed. Arguably, virtually all lost time injuries affect the employer's premium, as indemnity impacts an employer's experience modification factor. Thus, the fact that an employee is declared temporarily totally disabled necessitates disclosure of the diagnosis.

In addition, the employer would likewise be entitled to any pending or expected disability restriction in order to make work place modifications, and/or alternative work decisions. Nevertheless, some carriers may be reluctant to disclose sufficient information for an employer to make an informed decision.

Thus, savvy employers are employing a number of strategies to assist them in the management of claims and medical information. The most common tactic is to ask injured workers to sign release forms authorizing the treating physician to send the information to the employer's workers' comp department. Labor Code section 3762 (as modified under A B 749) specifically prohibits claims administrators from "causing to be disclosed" medical information that does not affect an employers' premium. The law doesn't apply to doctors.

HIPAA may be another problem though. While the preamble states that it was not intended to apply to workers' compensation, it doesn't give a blanket exclusion to work comp insurance companies, and some doctors won't release records, despite an written release from the employee, without a subpoena. In response, some employers, if the employee pre-designates a doctor, sends the physician a letter advising that they're required to disclose medical information to the claims administrator. In addition, getting cooperation from the employee goes a long way towards obtaining sufficient medical information to assist in claims management - most employees are interested in returning to work. Their understanding that the medical information to be obtained is only to assist in return to work efforts, and the employer's adherence to that policy, will assist in obtaining sufficient medical information to allow the risk manager to do the job.Certain laws have converged to make it difficult for employers to keep tabs on their workers' compensation claims by limiting the amount and type of medical information that can be received from claims administrators. However, some proactive employers have devised strategies to ensure that they get the information they need to manage claims, while ensuring injured worker medical privacy as well as compliance with the law.

While the preamble to the federal Health Information Privacy and Portability Act (HIPAA) excludes workers' compensation, many physicians still erroneously believe that HIPAA restrictions apply to all lines of insurance and not just health coverage.

California employers specifically, under the provisions to be active under AB 749 passed in February, have a right to diagnosis as well as the treatment plan for an injured worker. However, exactly what information an employer will be able to get is dependent largely on the carrier's disclosure policy, or the policy established by a self-insured's risk management department and third party administrator (TPA).

The employer has an obligation to the injured worker to provide the best quality medical care available under the work comp plan in place, as well as return that employee to gainful employment as soon as possible. Employers argue that, as a result, they need access to certain medical information. AB 749 specifically provides that medical information related to the diagnosis of the injury can be disclosed only if it will affect the employer's premium and that medical information necessary to modify an employee's workplace can also be disclosed. Arguably, virtually all lost time injuries affect the employer's premium, as indemnity impacts an employer's experience modification factor. Thus, the fact that an employee is declared temporarily totally disabled necessitates disclosure of the diagnosis.

In addition, the employer would likewise be entitled to any pending or expected disability restriction in order to make work place modifications, and/or alternative work decisions. Nevertheless, some carriers may be reluctant to disclose sufficient information for an employer to make an informed decision.

Thus, savvy employers are employing a number of strategies to assist them in the management of claims and medical information. The most common tactic is to ask injured workers to sign release forms authorizing the treating physician to send the information to the employer's workers' comp department. Labor Code section 3762 (as modified under A B 749) specifically prohibits claims administrators from "causing to be disclosed" medical information that does not affect an employers' premium. The law doesn't apply to doctors.

HIPAA may be another problem though. While the preamble states that it was not intended to apply to workers' compensation, it doesn't give a blanket exclusion to work comp insurance companies, and some doctors won't release records, despite an written release from the employee, without a subpoena. In response, some employers, if the employee pre-designates a doctor, sends the physician a letter advising that they're required to disclose medical information to the claims administrator. In addition, getting cooperation from the employee goes a long way towards obtaining sufficient medical information to assist in claims management - most employees are interested in returning to work. Their understanding that the medical information to be obtained is only to assist in return to work efforts, and the employer's adherence to that policy, will assist in obtaining sufficient medical information to allow the risk manager to do the job.