DRAFT
Version 5: 10/4/17
Based on Final HIPAA Privacy Rule
HIPAA COW
PRIVACY NETWORKING GROUP
USE AND DISCLOSURE OF PROTECTED HEALTH INFORMATION
FOR WORKERS’ COMPENSATION PURPOSES – PROVIDER SETTING
Disclaimer:
HIPAA Collaborative of Wisconsin (“HIPAA COW”) holds the Copyright © to thisUse and Disclosure of Protected Health Information for Workers’ Compensation Purposes Policy (“Document”). HIPAA COW retains full copyright ownership, rights and protection in all material contained in this Document. You may use this Document for your own non-commercial purposes. It may be redistributed in its entirety only if (i) the copyright notice is not removed or modified, and (ii) this Document is provided to the recipient free of charge. If information is excerpted from this Document and incorporated into another work-product, attribution shall be given to HIPAA COW (e.g., reference HIPAA COW as a resource). This Document may not be sold for profit or used in commercial documents or applications. This Document is provided “as is” without any express or implied warranty. This Document is for educational purposes only and does not constitute legal advice. If you require legal advice, you should consult with an attorney. Unless otherwise noted, HIPAA COW has not addressed all state pre-emption issues related to this Document. Therefore, this Document may need to be modified in order to comply with Wisconsin/State law.
State Preemption Issues: Wis. Stat.§ 102.13 and 102.33 covering Worker Compensation requests.Purpose: To provide guidance to healthcare providers
Background:
In compliance with the Privacy Rule of the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Wis. Stat.§ 102.33, a healthcare provider (covered entity) may disclose protected health information to Workers’ Compensation or other similar programs, established by law, that provide benefits for work-related injuries or illness without regard to fault. However, the health information disclosed must be limited to the minimum amount necessary to carry out the purpose of the disclosure.
An employee filing a claim for workers’ compensation due to an on-the-job injury, consents to certain conditions. One of those conditions is, at the employer’s request, they will submit to an examination to determine the validity of their claim. This information is then available, with certain restrictions, to the employee, employer, Department of Workforce Development, or representative of any of these to assist in resolving the claim.
Employees filing a workers’ compensation claim waive all provider-patient privilege of information or results regarding any condition or complaint reasonably related to the condition that they are claiming compensation for. This includes information normally covered by Wis. Stat.§ 51.30, 146.82 and any other applicable law, but only if it is related to the condition that the employee is seeking compensation for.
Definitions:
Workers Compensation: Is a system of benefits provided by law to most workers who have job related injuries or illnesses. The amount of the benefit paid is determined by individual state laws, and varies by state. All full time and part time employees are eligible to receive Worker's Compensation benefits. The Worker's Compensation System provides benefits for:
§ Medical Care - All necessary first aid, medical, surgical, and hospital services reasonably required to treat the injury or illness.
§ Lost Wages - Reimbursement for lost wages for employees who lose time from work as a result of a work related injury or illness, subject to statutory limitations.
§ Permanent Disability, Disfigurement and Death - Additional benefits may be available to employees who sustain injuries that result in permanent disability, disfigurement, or death.
Policy Statements:
1. Upon written request, copies of patient protected health information (PHI)/records or verbal communications, reasonably related to a work injury, should be released within a reasonable time to the employee, employer, Workers Compensation insurance carrier for the employer, and/or Department of Workforce Development or its representative.
2. Requests for copies of medical records which extend beyond the scope of the work-related injury need to be accompanied by a written authorization from the patient/employee.
3. Healthcare providers may provide legible copies of written patient protected health information (PHI)/records requested. Certified copies are furnished upon request. Refusal to provide the requested copies can result in the healthcare provider being liable for all costs of preparing the records and attorney’s fees incurred while attempting to get the requested copies.
4. Fees for copies are set by state statute and are updated regularly; refer to Wisconsin copy fee state statutes for current reimbursement for copies.[1]
5. Records of the Department of Workforce Development which identify an employee filing a worker’s compensation claim are confidential and not subject to inspection or copying under Wis. Stat.§ 19.35 (1). This includes the following:
A. Identity of the employee.
B. Nature of the claimed injury.
C. Past or present medical condition.
D. Extent of disability.
E. Amount, type or duration or any benefits provided to the employee.
F. Financial information provided to the department by self-insured employer or person applying for exemption under Wis. Stat.§ 102.28 (2)(b).
Additional Information:
Disclosure of Protected Health Information – Wis. Stat.§ 102.13:
This Wisconsin regulation allows worker's compensation insurers, state administrative agencies, and employers to obtain health information to the extent authorized under the state worker's compensation law. The minimum necessary standard generally requires that providers and insurers make reasonable efforts to limit uses and disclosures of protected health information to the minimum necessary to accomplish the intended purpose. Health care providers in Wisconsin may disclose an injured or ill employee's protected health information that is reasonably related to any injury for which the employee claims compensation without the employee's authorization when requested in writing by the employee, employer, worker's compensation insurer, or Department of Workforce Development or its representatives for purposes involving the individual's worker's compensation claim. The employee is entitled to receive a copy of all reports of the examination that were prepared immediately upon receipt of the reports by the employer or worker's compensation insurer.
U. S. Department of Health and Human Services – Office for Civil Rights Frequently Asked Questions – Workers Compensation Reviewed 2017
Won't the HIPAA Privacy Rule's minimum necessary standard impede the ability of worker's compensation insurers, State administrative agencies, and employers to obtain the health information needed to pay injured or ill workers the benefits guaranteed them under State worker's compensation system?
Answer: No. The Privacy Rule is not intended to impede the flow of health information to those who need it to process or adjudicate claims, or coordinate care, for injured or ill workers under worker's compensation systems. The minimum necessary standard generally requires covered entities to make reasonable efforts to limit uses and disclosures of, as well as requests for, protected health information to the minimum necessary to accomplish the intended purpose. For disclosures of protected health information made for worker's compensation purposes under 45 CFR 164.512(l), the minimum necessary standard permits covered entities to disclose information to the full extent authorized by State or other law. In addition, where protected health information is requested by a State worker's compensation or other public official for such purposes, covered entities are permitted reasonably to rely on the official's representations that the information requested is the minimum necessary for the intended purpose. See 45 CFR 164.514(d)(3)(iii)(A).
For disclosures of protected health information for payment purposes, covered entities may disclose the type and amount of information necessary to receive payment for any health care provided to an injured or ill worker. The minimum necessary standard does not apply to disclosures that are required by State or other law or made pursuant to the individual's authorization.
Does the HIPAA Privacy Rule permit a health care provider to disclose an injured or ill worker's protected health information without his or her authorization when requested for purposes of adjudicating the individual's worker's compensation claim?
Answer: Covered entities are permitted to disclose protected health information for such purposes as authorized by, and to the extent necessary to comply with, worker's compensation law. See 45 CFR 164.512(l). In addition, the Privacy Rule generally permits covered entities to disclose protected health information in the course of any judicial or administrative proceeding in response to a court order, subpoena, or other lawful process. See 45 CFR 164.512(e).
Does an individual have a right under the HIPAA Privacy Rule to restrict the protected health information his or her health care provider discloses for worker's compensation purposes?
Answer: Individuals do not have a right under the Privacy Rule at 45 CFR 164.522(a) to request that a covered entity restrict a disclosure of protected health information about them for worker's compensation purposes when that disclosure is required by law or authorized by, and necessary to comply with, a worker's compensation or similar law. See 45 CFR 164.522(a) and 164.512(a) and (l).
References:
§ Chapter 146 HIPAA Privacy Standards Matrix
§ WHIMA Legal Resource Manual
§ Wis. Stat.§ 102.13 and 102.33
§ Wis. Stat.§ 146
Version History
Current Version: October 4, 2017
Prepared by: / Reviewed by: / Content Changed:Nancy Davis, MS, RHIA, CHPS
Door County Medical Center / Catherine J. Hansen, RHIA
St. Croix Regional Medical Center
Chrisann Lemery, MS, RHIA, CHPS; Mercy Care Health Plans / No significant changes made; reviewed and updated with formatting changes.
Original Version: January 22, 2004
Prepared by: / Reviewed by:Karen Freymiller, RHIT / Julianne Dwyer, legal intern, UW Law School student
HIPAA COW Policy, Procedure and Operations Workgroup
Ó Copyright HIPAA COW Page 1
[1] Wis. Stat. § 102.13(2)(b).