Doctor-Patient Confidentiality, HIPAA Privacy Regulations, and Workers Compensation in Virginia
Many injured workers contact me when they find out that their employer or the insurance company has called or spoken with the authorized treating physician in their workers compensation case. They want to know, “Can the employer or its insurance company talk to my workers compensation doctor without my permission?” The answer is yes. The workers compensation doctor can talk to the employer and insurance company about your work injury and medical treatment.
This article discusses HIPAA privacy regulations and the strength of physician-patient confidentiality under Virginia workers compensation. If you have questions about workers’ comp in Virginia, or are looking for one of the best workers compensation lawyers in the state, contact Corey Pollard for a free consultation. We have helped hundreds of injured employees navigate workers compensation medical issues and negotiate top-dollar workers comp settlements.
HIPAA Privacy Regulations and Workers’ Compensation
The Health Insurance Portability and Accountability Act’s (HIPAA’s) privacy regulations went into effect in 2003. HIPAA’s privacy regulations restrict the type of patient information that medical providers can release, unless the information is necessary for the purpose of treatment or treatment.
The relevant HIPAA Regulation is 45 CFR 164.512 – Uses and disclosures for which an authorization or opportunity to agree or object is not required. Part l of 45 CFR 164.512 states:
Standard: Disclosures for workers’ compensation. A covered entity may disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers’ compensation or other similar programs, established by law, that provide benefits for work-related injuries or illnesses without regard to fault.
The U.S. Department of Health and Human Services provides additional guidance on its website (https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/disclosures-workers-compensation/index.html):
The HIPAA Privacy Rule does not apply to entities that are either workers’ compensation insurers, workers’ compensation administrative agencies, or employers, except to the extent they may otherwise be covered entities. However, these entities need access to the health information of individuals who are injured on the job or who have a work-related illness to process or adjudicate claims, or to coordinate care under workers’ compensation systems. Generally, this health information is obtained from health care providers who treat these individuals and who may be covered by the Privacy Rule. The Privacy Rule recognizes the legitimate need of insurers and other entities involved in the workers’ compensation systems to have access to individuals’ health information as authorized by State or other law. Due to the significant variability among such laws, the Privacy Rule permits disclosures of health information for workers’ compensation purposes in a number of different ways.
Under the HIPAA Privacy Rule, medical providers may disclose protected health information to employers and workers compensation insurance companies to comply with all workers’ compensation programs, including the Federal Employees’ Compensation Act, the Longshore and Harbor Workers’ Compensation Act, the Energy Employees’ Occupational Illness Compensation Program Act, and state workers’ compensation systems.
The HIPAA Privacy Rule also states that protected health information may be shared for such purposes to the full extent authorized by state law. We must, therefore, examine Virginia law on what health information may be produced in workers’ compensation claims.
Virginia Law on Disclosing Patient Information in Workers Compensation Cases
There are two sections of the Virginia Workers’ Compensation Act that address the disclosure of patient information directly.
Virginia Code Section 65.2-604 – Furnishing copy of medical report.
This section states:
A. An health care provider attending an injured employee shall, upon request of the injured employee, employer, insurer, or a certified rehabilitation provider … providing services to the injured employee, or of any representative thereof, furnish a copy of any medical report to the injured employee, employer, insurer, or a certified rehabilitation provider … providing services to the injured employee, or to any representative thereof, or to each of them upon request for such medical report.
B. Whenever any health care provider attending an injured employee refers the employee or transfers responsibility for his care to another health care provider, the referring or transferring provider, upon receipt of a request therefor, shall promptly transfer or cause to be transferred to the new or succeeding provider, or to the employee or someone acting on behalf of the employee, copies of all diagnostic test results, x-ray photographs, and other medical records pertaining to the employee’s injury for which further treatment is to be sought from the succeeding provider.
… … …
C. As used in this section, the term “health care provider” shall have the same meaning as set forth in Section 8.05-581.1, except that state-operated facilities shall also be considered health care providers for the purposes of this section.
So what does this mean? It means that under Virginia workers compensation your medical providers must turn over copies of ALL records, reports, films, and documents relating to treatment for your work injury. The Workers’ Compensation Commission has stated:
An employer responsible for the costs of medical treatment is entitled to medical records and reports that show the nature of the treatment being provided, the current status of the claimant, and the relationship of the treatment to the work injury. Newton v. Hunt Country Nursing Service, VWC File No. 196-43-73 (June 12, 2002) citing Hardy v. Augusta Correctional Center, VWC File No. 151- 08-12 (September 28, 1995) and § 65.2-604. The Commission may require reports not requested by other federal and state agencies. Martin v. Saunders B. Moon Community, 71 OWC 198 (1992); see also Foti v. Arlington County, VWC File No. 110-34-74 (March 24, 2000) (The employer was not responsible for the cost of medical care provided by a physician who “refused to provide the employer or its carrier with any ongoing treatment notes or reports on the nature of the treatment being offered the claimant, the future course of treatment under her care, and the claimant’s long-term prognosis.”) [emphasis added].
As such, you should presume that all your medical records will be reviewed by the employer and insurer. This is why it’s so important to be honest with your workers compensation and your doctor about everything.
Virginia Code Section 65.2-607 – Medical examination physician-patient privilege inapplicable, autopsy
Virginia Code Section 65.2-607 waives the physician-patient privilege as to all physicians and medical providers who treat you in all proceedings under the Workers’ Compensation Act. It states:
No fact communicated to, or otherwise learned by, any physician or surgeon who may have attended or examined the employee, or who may have been present at any examination, shall be privileged, either in hearings provided for by this title, or any action at law brought to recover damages against any employer subject to the provisions of this title.
In other words, there is no doctor-patient confidentiality or physician-patient privilege under workers compensation in Virginia. Your doctor can tell your employer and the insurance carrier anything he or she wants to regarding your workers’ compensation case and occupational injuries. This is why it’s important to talk to your workers compensation doctor and build a good relationship.
An Experienced Workers Compensation Attorney to Handle the Medical Issues
As the claimant in a workers’ compensation case, you waive the physician-patient privilege by filing a workers’ compensation claim. But that doesn’t mean that your workers’ comp doctor has to talk to the employer or insurance company.
As your attorney, we’ll work with your doctor to strengthen your case and to limit the unfavorable medical records the insurance company is allowed to see. We will fight all unreasonable requests for disclosures. And we will talk to the doctor about his or her rights and responsibilities under the Workers’ Compensation Act.
Contact us today for help with the workers compensation claims process. We’ll do everything we can to maximize your benefits and compensation.