HIPPA (Work restrictions provided to employer) (California)

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HIPPA (Work restrictions provided to employer) (California)

Postby wcscout on Wed Jan 09, 2019 11:13 am

Can an employer be sent a narrative report if it contains work restrictions, in order to accommodate same, or is the insurer limited to providing the work restrictions and not the report?
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Re: HIPPA (Work restrictions provided to employer) (California)

Postby jpod on Wed Jan 09, 2019 1:30 pm

Review Labor Code section Labor Code 3762(c).

It depends on what else is covered in the report i.e past medical history would seem to violate 3762(c) unless it directly applies to work restrictions.

The best practice is take the work restrictions out of the report and send just the portion that discusses the restrictions.
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Re: HIPPA (Work restrictions provided to employer) (California)

Postby LawAdvocate on Wed Jan 09, 2019 2:02 pm

The employer unless it is the self-insured risk manager should never be sent a complete narrative medical report. You redact the report to the work restrictions only.
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Re: HIPPA (Work restrictions provided to employer) (California)

Postby steve appell on Wed Jan 09, 2019 2:49 pm

As LA AD said, never serve the ER the medical report. However, the ER is entitled to know the diagnosis, current disability status, and current work restriction.

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Re: HIPPA (Work restrictions provided to employer) (California)

Postby vampireinthenight on Thu Jan 10, 2019 9:29 am

Yep, snip out the work restrictions and only forward those.
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Re: HIPPA (Work restrictions provided to employer) (California)

Postby 50Cal20 on Fri Jan 11, 2019 8:44 am

I agree with all the above. Just that portion pertaining to work restrictions should be sent to the employer.

Now let me throw an interesting twist at everyone. Does it make a difference if the employee no longer works for the employer? The law says that medical reports can't be shared with the employer. It is absolutely silent about sharing the report with a "former employer."

I personally believe that sharing the report with a former employer is allowed. Think about it. There is a legal and significant difference between and employer and a former employer.

By way of history, do you remember how this medical privacy law came about? The law was implemented after an insurance company sent a medical report to the risk manager whose daughter was injured while working there. In the medical report he learned about an abortion his daughter had a few years earlier which he knew nothing about. Privacy advocates used this example to demonstrate why employers should not receive medical reports.
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Re: HIPPA (Work restrictions provided to employer) (California)

Postby vampireinthenight on Fri Jan 11, 2019 9:19 am

Seriously? Yes, it's still the employer for purposes of the WC case. Otherwise you could toss out half of the labor code when someone resigns.

I get that a lot of the rationale for the rule disappears when the IW is separated, but I'm trying to think why one would want to serve a prior employer with a current medical report. There are still some basic privacy concerns at play.
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Re: HIPPA (Work restrictions provided to employer) (California)

Postby jpod on Fri Jan 11, 2019 12:57 pm

I agree with Vampire; an employer no longer has any need to know about work restrictions for an ex-employee. The employer is either insured or self insured (or uninsured). If insured they pay the premiums and have no say in the administration of the claim and only need info on work restrictions. If insured, whether a fronted arrangement or true self insurance, the employer must hire an administrator who has to comply with the labor code and comply with privacy laws. The HIPPA exclusion for workers comp applies to WC administrators or insurers; there is no WC HIPPA exception for employers beyond what Steve and I alluded to via LC 3762(c) which limits the medical info insurers or administrators can share.

I would go the other way: if it is an ex-employee the potential for privacy violations goes up not down.

And BTW HIPPA is the least of your concern as CA has much broader privacy protections than HIPPA (a federal law) provides. It starts with the CA Constitution which grants a constitutional right to privacy that the US Constitution does not explicitly provide. California has CIMA and other Acts, plus the pending CCPA.
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