OhioBWC - Basics: (Policy library) - File

Claim Confidentiality and Information Requests

Policy and Procedure Name:	Claim Confidentiality and Information Requests
Policy #:	CP-03-03
Code/Rule Reference:	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.
Other Resources:	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.
Effective Date:	10/15/2020
Approved:	Ann M. Shannon, Chief of Claims Policy & Support
Origin:	Claims Policy
Supersedes:	Policy CP-03-03, effective 05/16/19 and Procedure CP-03-03.PR1 effective 05/16/19
History:*	Previous versions of this policy are available upon request.

Table of Contents

I. POLICY PURPOSE

II. APPLICABILITY

III. DEFINITIONS

Confidential Information

Non-psychotherapy notes

A. Claim Confidentiality and Information Requests: General Policy

B. Information Requests for Claim Documents

C. Claim Confidentiality Regarding Certain Psychological or Psyciatric 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 Requirements

B. Information Requests

C. Confidentiality

D. Redactions

E. Imaging Psychiatric Information

I. POLICY PURPOSE

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.

II. APPLICABILITY

This policy applies to BWC claims services staff.

III. DEFINITIONS

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.

IV. POLICY

A. Confidentiality of Claim Information: General Policy

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 shall not require consent to release information for interpreters with 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 shall use discretion and sound judgment in discussing claim issues, so as not to disclose confidential information.

B. Information Requests for Claim Documents

1. BWC shall 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.

C. Protecting Claim Information Regarding Certain Psychiatric Conditions and Human Immunodeficiency Virus (HIV) or Acquired Immune Deficiency Syndrome (AIDS)

1. BWC shall 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 shall 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.

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

d. It is the policy of BWC that psychotherapy notes shall not be released to the parties to the claim without a HIPAA compliant release.

e. It is the policy of BWC that psychotherapy notes shall 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.

D. Occupations Statutorily Not Subject to Release

1. BWC shall not release the residential and familial information of:

a. Peace officers as defined in R.C. 109.71;

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 shall 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 shall also 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.

c. Exceptions: The information described above may be released:

i. To a party to the claim or provider attached to the claim; or

ii. With an IW’s written consent specifically granting BWC permission to do so.

3. Upon the death of an IW whose occupation is one of those described above, BWC shall continue to protect information pertaining to the IW’s spouse, former spouse, and children.

4. When an IW’s occupation is one of those described above, BWC shall protect information regarding the IW, spouse, former spouse, and children in all of the IW’s claims.

V. PROCEDURE

A. General Claim Note and Documentation Requirements

1. BWC staff shall refer to the Standard Claim File Documentation and Altered Documents policy and procedure for claim note and documentation requirements; and

2. Shall follow any other specific instructions for claim notes and documentation included in this procedure.

B. Information Requests

1. Claims services staff shall comply with all applicable BWC Human Resources policies and procedures, including, but not limited to the following:

a. Public Record requests – staff shall refer to the BWC Human Resources Employee Handbook Memo 4.33 Public Records Review Policy and Procedure.

b. Journalists or bloggers – staff shall 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 shall 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).

i. If the person is identified as a party to the claim, staff may share claim information verbally, electronically/digitally, or by hard copy.

ii. If the person is not a party to the claim, refer to Section 3 below.

3. Requests from a non-party to the claim

a. Claims services staff shall not release any claim information (including whether or not 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 shall 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 shall 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 shall:

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 shall:

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.

C. Releasing Claim Information

1. When questions arise regarding whether or not a medical record or documentation in the claim may be released, claims services staff shall 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;

b. Able to be released.

2. Claims services staff shall 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 shall not release documents placed in the “CONFIDENTIAL” file to anyone, including a party to the claim.

D. Redactions

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 releaseable and it contains references to a psychiatric condition or HIV/AIDS status not allowed in the claim, claims services staff shall 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 releaseable and it contains claim information for an IW whose occupation is statutorily not subject to release as described in this policy, claims services staff shall redact all residential and familial information unless a signed C-72 or equivalent specifically gives consent to release this information to the requestor.

E. Imaging Psychiatric Information (non-psychotherapy and psychotherapy notes)

1. When claims services staff receives psychiatric information from the provider, claims services staff shall review it 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 shall 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 shall contact the provider to clarify the nature of the psychiatric information if there is doubt as to whether or not it constitutes psychotherapy notes.

2. Claims services staff shall 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. This information shall 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. However, 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 shall not request psychotherapy notes from the provider.

b. Claim service 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.