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Policy and Procedure Name:
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Claim Confidentiality and Information Requests
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Policy #:
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CP-03-03
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Code/Rule Reference:
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R.C. 109.71, 149.43, 1347.12, 1347.15, 2317.02, 3701.243,
4123.27,
4123.88,
4732.19.
O.A.C. 4123-3-22,
4123-15-03,
4123-16-01,
4123-16-08.
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Other Resources
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The Health Insurance Portability and Accountability Act
(HIPAA) of 1996 (specifically 45 CFR 164.501).
BWC Human Resources and Legal memos that relate to
confidentiality, information requests and subpoenas.
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Effective Date:
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10/15/2020
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Approved:
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Ann M. Shannon, Chief of Claims Policy & Support
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Origin:
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Claims Policy
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Supersedes:
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Policy CP-03-03, effective 05/16/19 and Procedure CP-03-03.PR1 effective 05/16/19
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History:
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Previous versions of this policy are available upon
request
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Table of Contents
I. POLICY PURPOSE
II. APPLICABILITY
III. DEFINITIONS
Confidential Information
Non-Psychotherapy Notes
Party to the Claim
Peace Officer
Psychotherapy Notes
Public
Public Record
Redact
IV. POLICY
A. Confidentiality
of Claim Information: General Policy
B. Information
Requests for Claim Documents
C. Protecting
Claim Information Regarding Certain Psychiatric Conditions and Human
Immunodeficiency Virus (HIV) or Acquired Immune Deficiency Syndrome (AIDS)
D. Occupations
Statutorily Not Subject to Release
V. PROCEDURE
A. General Claim Note and Documentation
Requirements
B. Information Requests
C. Releasing
Claim Information
D. Redactions
E. Imaging
Psychiatric Information (non-psychotherapy and psychotherapy notes)
The purpose of this policy is to ensure that BWC protects
confidential injured worker (IW) and employer information, and properly handles
the accessing and release of confidential information and that which is public
record.
This policy applies to BWC claims services staff.
Confidential Information:
Legally protected information relating to data, such as any injured worker data
that contains a name or any other identifier and which describes anything
about, done by or done to a person.
Non-Psychotherapy Notes:
For purposes of this policy and as defined by HIPAA, this is the information
HIPAA excludes from psychotherapy notes. It includes information about
medication prescription and monitoring, counseling session start and stop
times, the modalities and frequencies of treatment furnished, result of
clinical tests and summaries of the following items: diagnosis, functional
status, the treatment plan, symptoms, prognosis, and progress to date.
Party to the Claim:
Injured worker, employer, injured worker authorized representative or employer
authorized representative.
Peace Officer:
For purposes of this policy, an individual legally vested with enforcement
rights who generally works for a city, county or state public employer and can
be either “traditional” (e.g., police officer) or “non-traditional” (e.g.,
certain park rangers, tax agents or liquor agents).
Psychotherapy Notes:
For purposes of this policy and as defined by HIPAA, these are notes recorded
(in any medium) by a health care provider who is a mental health professional
documenting or analyzing the contents of conversation during a private
counseling session or a group, joint or family counseling session and that are
separated from the rest of the individual’s medical record. HIPAA has created
standards that strictly limit access to psychotherapy notes so as to prevent
the improper use of a person’s medical records.
Public: For
purposes of this policy, any person not a party to the claim, including a
spouse or relative of the injured worker.
Public Record:
Any document, device, or item, regardless of its physical or electronic form or
characteristic (i.e., paper, documents, photocopies, maps, drawings,
photographs, email, computer disks, audio, and video tape recordings) that is
created by a public office or coming under the jurisdiction of a public office.
A public record serves to document the organization, functions, policies,
decisions, procedures, operations, or other activities of the office and is
kept by the public office. The law provides many exceptions that exempt certain
types of records from public disclosure.
Redact: To
obscure or remove (text) from a document prior to publication or release.
1. It
is the policy of BWC to require staff to comply with the applicable BWC Human
Resources policies and procedures on:
a. Confidentiality;
b. Information
requests (including public record, journalist, and blogger requests); and
c. Sensitive
data.
2. Claim
Information
a. It
is the policy of BWC to treat claim information as confidential and not as a
public record.
b. It
is the policy of BWC to release claim information only to a requester who is
legally authorized to receive it.
3. It
is the policy of BWC that:
a. A
party to the claim may see all information in the claim, unless otherwise
specified in this policy.
b. Claims
services staff will not require consent to release information for interpreters
whom the IW has agreed to use.
c. Managed
Care Organizations (MCOs) associated with the claim may receive information in
the claim and are bound to preserve the confidentiality of the information and
comply with BWC’s sensitive data transmission policies when communicating with
BWC.
d. Providers
associated with the claim may receive information in the claim and are bound to
preserve the confidentiality of the information and comply with BWC’s sensitive
data transmission policy when communicating with BWC.
4. If
an IW has other claims that have an impact on the claim in question, BWC may
share information between those claims.
5. During
the investigation of a claim, BWC may request information that is necessary for
processing the claim or contact a non-party to the claim for additional
information. BWC will use discretion and sound judgment in discussing claim
issues, so as not to disclose confidential information.
1. BWC must
make a claim available for inspection at a time during regular business hours.
2. Authorization
to Release Claim Information
a. BWC
will not release an IW’s claim information unless the IW (or their legal
guardian, authorized representative, or executor, if applicable) submits a Consent
to Release Information (C-72) form or a written request containing
equivalent information. The C-72:
i.
Authorizes BWC to:
a) Verbally
communicate information about the IW’s claim to the specific person named on
the C-72; or
b) Disclose
documentation regarding the IW’s claim to the specific person/organization
named on the C-72.
ii. Is
valid for up to one year (or an earlier date identified by the IW on the C-72);
and
iii. Can be revoked
at any time at the written request of the IW.
b. No
member of the public, including a person listed as a designee in the claim, is
entitled to obtain or review claim information (including whether or not a
claim exists), without a signed C-72, with the following exceptions: If a
non-party to the claim has a durable power of attorney (POA) or proof of
guardianship granted by the courts, a copy is required to be on file prior to
disclosing any information. Refer to Custody,
Guardianship, Power of Attorney and Incapacitation policy and
procedures for more information.
3. Limited
Exceptions:
a. If
the IW is unable to communicate when the claim is initially filed, BWC may
speak with a family member without an authorization/release on a temporary
basis.
b. For
limited telephone conversations, BWC may accept verbal authorization from the
IW to speak to another person during the same telephone conversation regarding
their claim information. However, if the IW intends for the permission to be
ongoing, the IW must submit a C-72.
1. BWC will
either redact or place the following information into the claim file where it
is not viewable by the parties:
a. Psychiatric
information if the psychiatric condition is not allowed or not being requested
in the claim.
b. Psychiatric
information in the following situations, even if the psychiatric condition is
allowed or being requested in the claim:
i.
When a physician, psychiatrist or psychologist determines that
psychiatric information is detrimental to the IW, BWC will not release
information to the IW. BWC may release the information to a physician,
psychiatrist or psychologist who is designated by the IW or by their legal
guardian; and
ii. Psychotherapy
notes.
c. Medical
records that contain information regarding an IW’s HIV or AIDS status or
testing when the condition has not been requested for allowance in the claim.
2. Psychotherapy
notes
a. BWC
will not release psychotherapy notes to the parties to the claim without a
HIPAA compliant release.
b. Psychotherapy
notes will not be viewable in the claim, unless a party to the claim submits
psychotherapy notes obtained from the treating physician pursuant to a signed
release from the IW, and in support of, or in opposition to, a motion.
3. When
claim information as described above is submitted to the claim and redaction is
impractical, it is the policy of BWC to change the document type to “CONFID”.
This document type is only viewable internally and is accessed by clicking on
the “CONFID” tab.
1. BWC will
not release the residential and familial information of:
a. Peace
officers as defined in R.C. 109.71; and
b. Peace
officers, parole officers, probation officers, bailiffs, prosecuting attorneys,
assistant prosecuting attorneys, correctional employees, community-based
correctional facility employees, youth services employees, firefighters,
emergency medical technicians (EMT), or investigators of the Bureau of Criminal
Identification and Investigation (BCI) as defined in R.C. 149.43(A)(1)(p).
2. When
an IW’s occupation is one of those described above:
a. BWC will
not release any of the following information about the IW:
i.
Address, except for the state or political subdivision;
ii. Information
pertaining to referral or participation in an employee assistance program;
iii. Telephone number
(including emergency phone number);
iv. Social
security number;
v. Financial
or credit information;
vi. Beneficiaries
of employment benefits (from and source);
vii. The identity and
amount of any charitable or employment benefit deduction by the employer from
the employee’s compensation (unless the amount is required by state or federal
law);
viii. Names of family members; or
ix. Medical
information.
b. BWC will
not release any of the following information about the IW’s spouse, former
spouse, or any of the IW’s children:
i.
Address;
ii. Telephone
number (including emergency phone number);
iii. Social security
number;
iv. Employment
information; or
v. Financial
or credit information.
3. Exceptions:
The information described above may be released:
a. To a
party to the claim or provider attached to the claim; or
b. With
an IW’s written consent specifically granting BWC permission to do so.
4. Upon
the death of an IW whose occupation is one of those described above, BWC will
continue to protect information pertaining to the IW’s spouse, former spouse,
and children.
5. When
an IW’s occupation is one of those described above, BWC will protect
information regarding the IW, spouse, former spouse, and children in all of the
IW’s claims.
1. BWC
staff will refer to the Standard
Claim File Documentation and Altered Documents policy and procedure for
claim note and documentation requirements; and
2. Must
follow any other specific instructions for claim notes and documentation
included in this procedure.
1. Claims
services staff must comply with all applicable BWC Human Resources policies and
procedures, including, but not limited to the following:
a. Public
records requests – Staff will refer to the BWC Human Resources Employee
Handbook Memo 4.33 Public Records Review.
b. Journalists
or bloggers – Staff will refer to the BWC Human Resources Employee Handbook
Memo 4.15 Relations with News Media.
2.
Requests from a party to the claim
a. Claims
services staff must not release any information without the verification of the
identity of the individual requesting the information regardless of whether the
request is verbal or electronic (email).
b. If
the person is identified as a party to the claim, staff may share claim
information verbally, electronically/digitally, or by hard copy.
c. If
the person is not a party to the claim, see immediately below.
3. Requests
from a non-party to the claim
a. Claims
services staff must not release any claim information (including whether a
claim exists) to anyone who is not a party to the claim (including an
individual listed in the claim as a designee) without the IW’s written or
temporary verbal consent.
b. Consent
to review or obtain information in a claim
i.
If an IW has a signed C-72 or equivalent, claims services staff will
release the information to the requesting individual and update the consent in
the claims management system under the:
a) Customer
Record;
b) Contacts;
and
c) Contact
Listing, and enter:
i)
Contact Type;
ii) Name;
iii) Current date;
and
iv) Expiration date
one year from the date of the consent.
ii. If a
C-72 or equivalent is submitted by an IW granting or revoking authorization to
speak to someone regarding the IW’s claim on the IW’s behalf, claims services
staff will save the document in the document management system in all claims
for which the authorization has been granted.
iii. During telephone
calls with the IW, if the IW gives BWC verbal consent to speak to another
person during that same call regarding their claim information, claims services
staff will:
a) Document
in claim notes the name of the person the IW has given permission to speak with
as well as their relationship to the IW; and
b) Inform the
IW that if they would like to give ongoing consent for BWC to release
information to another party, they must submit the consent to BWC in writing by
completing a C-72 or equivalent.
c. When
claims services staff is contacted by a family member or any other non-party to
the claim who has a durable Power of Attorney (POA), prior to releasing any
information, claims services staff must:
i.
Acquire a copy of the durable POA; and
ii. Consult
with a BWC attorney regarding whether the durable POA entitles the requester to
the information.
1. When
questions arise regarding whether a medical record or documentation in the
claim may be released, claims services staff will review these issues with a
BWC attorney. The BWC attorney may assist claims services staff in determining
whether a document is:
a. Viewable
by a party to the claim; and
b. Able
to be released.
2. Claims
services staff must not release to anyone, including parties to the claim,
claim information that is not releasable.
3. In
the event of an information request, claims services staff must not release
documents placed in the “CONFIDENTIAL” file to anyone, including a party to the
claim.
1. When
someone requests a document and there is a signed C-72 with specific consent to
release the information to the requester, no redactions are necessary.
2. When
a document subject to a records request is releasable and it contains
references to a psychiatric condition or HIV/AIDS status not allowed in the
claim, claims services staff must redact any information regarding these
conditions, unless a signed C-72 or equivalent specifically gives consent to
release this information to the requestor.
3. When
a document subject to a records request is releasable and it contains claim
information for an IW whose occupation is statutorily not subject to release as
described in this policy, claims services staff must redact all residential and
familial information, unless a signed C-72 or equivalent specifically gives
consent to release this information to the requestor.
1.
When claims services staff receives psychiatric information from the
provider, claims services staff will review the information to determine if it
is:
a. Non-psychotherapy
notes related to a psychiatric condition allowed or requested in the claim.
These are generally viewable by the parties and are pertinent medical
information for the management of the claim. Exception: If a provider
documents that a review of the information by the IW will be detrimental to the
IW, then the non-psychotherapy notes may not be viewable.
b. Psychotherapy
notes are generally not viewable by the parties in the claim, even if the
psychiatric condition is allowed in the claim.
Exception:
If a party to the claim submits psychotherapy notes that were directly obtained
from the treating physician pursuant to a signed release from the IW, and in
support of (or in opposition to) a motion, then the psychotherapy notes may be
viewable.
c. Claims
services staff must save non-viewable psychiatric information such as
psychotherapy notes as well as non-psychotherapy notes deemed detrimental to
the IW in the Confidential folder of the claims
management system.
d. Claims
services staff will contact the provider to clarify the nature of the
psychiatric information if there is doubt as to whether it constitutes
psychotherapy notes.
2. Claims
services staff will contact the treating physician to determine how to handle
claims with psychiatric information deemed to be detrimental to the IW. The
treating physician is responsible for discussing reports with the IW as well as
informing them of the intent to provide the information to BWC.
3. Medical
documentation pertaining to a psychiatric condition not allowed and not
requested in a claim shouldn’t be viewable to the parties in the claim.
a. This
information must be redacted and left in the imaged documents, or if redaction
is impractical, placed in its entirety in the Confidential folder of the claims
management system.
b. If
at some point in the future the psychiatric condition becomes allowed or is
requested, the information may be removed from the Confidential folder of the
claims management system or the unredacted version may be restored to the
imaged documents of the claim.
4. Requesting
mental health notes
a. Claims
services staff will not request psychotherapy notes from the provider.
b. Claims
services staff may request non-psychotherapy notes needed to support periods of
disability or for the management of the claim. Claims services staff may use
the Mental
Health Notes Summary (MEDCO-16) form to request non-psychotherapy
notes.