Privacy: Workers' Compensation Health Data Heading for Electronic Storage

Medical records are a significant aspect of workers' compensation claims and storing them is a significant issue. As claims are filed and litigation is pursed, medical records become critical evidence in evaluation claims and adjudicating decisions.

With the explosion of electronic medical records mandated by The Patient Protection and Affordable Health Care Act, the secure storage. retrieval and dissemination of medical records has become a challenge. Even though The Health Insurance Portability and Accountability Act of 1999 (HIPPA) mandates a privacy exclusion for workers' compensation claims, the medical records must remain protected and secure to maintain integretary and avoid unlawful access.

Missing from the equation are regulations from workers' compensation agencies to provide for the security and integrity of the records that have been widely disseminated within the workers' compensation system.

One company has has built a "Bunker" for health records.

Privacy: Cell Phone Not Protected From Search

A Federal Court of Appeals has ruled that data stored on a cell is not protected from a governmental search and inspection. Over the last few years the privacy of e-mail was called into question, however the now the permitter of permitted inspection has expanded to include the data store of cell phones, whether it be photos or text.

"We conclude that the Stored Communications Act, which prohibits accessing without authorization a facility through which an electronic communication service is provided and thereby obtaining access to an electronic communication while it is in electronic storage, does not apply to data stored in a personal cell phone."

Fannie Garcia v City of Orlando (No. 11-41118) (5th Cir 2012) Decided 12/12/12

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Workers' Compensation: Privacy, Clients and Social Media DiscussionApr 14, 2011
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Major California Medical Record Privacy Breach DisclosedAug 23, 2011
The lack privacy of medical records in workers' compensation claims has perpetually been a huge concern for workers since Congress ignored requests to protect their dissemination. A recent disclosure in California that the ...
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Privacy Went Out the Window

Privacy, a core element in the workers’ compensation system, is rapidly become a thing of the past. Both the State and Federal governments have not considered it a key ingredient in the program.

States, in their to conversion to electronic claims record keeping, have eliminated privacy. The State of California electronically released workers’ compensation claim data concerning Nadya Suleman, the mother who gave birth to eight babies last week. This was after months of complaints by claimants and attorneys that the California electronic claims system was flawed.

Likewise the Federal law, HIPPA [The Health Care Personal Information Non-Disclosure Act of 1998] governing medical records specifically excludes workers’ compensation medical information. Final Health Insurance Privacy Regulations that were published by the Department of Health and Human Services on December 28, 2000, establishing standards for privacy of individually identifiable health information records eliminate privacy in compensation claims. While the regulations cover health plans, health care clearinghouses and certain other providers who use computers to transmit claims information, workers' compensation insurance carriers are exempted.

The Institute of Medicine (IOM) committee has recently recommended the Congress and health agencies develop a new approach to protecting privacy in health research. In a 316 page report released by their Committee on Health Research and the Privacy of Health Information it concluded that HIPPA does not protect privacy.

As the country embarks on a new economic recovery program, including national health care, the Federal government must rebuild the national system of workers’ compensation system. Privacy should not be thrown out the windows when administering a workers' compensation benefit delivery system.

HIPPA Privacy Modifications Under Presidential Emergency H1N1 Flu Order

Under the emergency declaration for H1N1 flu signed by President Obama on October 24, 2009, the HIPPA Privacy rule is not waived according to Federal HHS interpretation; however, "the Secretary of HHS may waive certain provisions of the Rule under the Project Bioshield Act of 2004 (PL 108-276) and section 1135(b)(7) of the Social Security Act."
 
Those modifications are:
 
"If the President declares an emergency or disaster and the Secretary declares a public health emergency, the Secretary may waive sanctions and penalties against a covered hospital that does not comply with certain provisions of the HIPAA Privacy Rule:

•  the requirements to obtain a patient's agreement to speak with family members or friends involved in the patient’s care (45 CFR 164.510(b)) 
• the requirement to honor a request to opt out of the facility directory (45 CFR 164.510(a)) 
• the requirement to distribute a notice of privacy practices (45 CFR 164.520) 
• the patient's right to request privacy restrictions (45 CFR 164.522(a)) 
• the patient's right to request confidential communications (45 CFR 164.522(b)) 

"If the Secretary issues such a waiver, it only applies:

1. In the emergency area and for the emergency period identified in the public health emergency declaration.

   2. To hospitals that have instituted a disaster protocol.  The waiver would apply to all patients at such hospitals.

   3. For up to 72 hours from the time the hospital implements its disaster protocol.

"When the Presidential or Secretarial declaration terminates, a hospital must then comply with all the requirements of the Privacy Rule for any patient still under its care, even if 72 hours has not elapsed since implementation of its disaster protocol. 

"Regardless of the activation of an emergency waiver, the HIPAA Privacy Rule permits disclosures for treatment purposes and certain disclosures to disaster relief organizations. For instance, the Privacy Rule allows covered entities to share patient information with the American Red Cross so it can notify family members of the patient’s location.  See 45 CFR 164.510(b)(4)."

Similar rule modifications were invoked during the Katrina disaster.

To read more about medical record privacy and workers' compensation, click here.

Digital Identification: Is Your Employer Going to Take Your Digital Finger Prints, Iris Scans or Face ID

The technology to digitally capture and store an individual's personal biometric identifiable information is growing at a rapid pace. Employers, medical providers and even government agencies have become frustrated by the outlawed use of Social Security numbers as means of identification.

A simple and easily used application has now become available to collect this data through an iPhone. Balacing workers' privacy against the administration of a workers' compensation system has certainly become even more challending. The use of national and international databases for the collection, dissemination and use of this type of data publically, strikes fear in the hearts of injured workers and they become even more reluctant to report both saftey concerns and injuries to employers for fear of discrimination and retaliation.

"The California-based company AOptix rolled out a new hardware and app package that transforms an iPhone into a mobile biometric reader. As first reported by Danger Room in February, AOptix is the recipient of a $3 million research contract from the Pentagon for its on-the-go biometrics technology."

Read he Complete Article::  Now Your iPhone Can Read Fingerprints, Scan Irises and ID Your Face (Wired)

The New Economic Recovery Act Fails to Include Workers' Compensation Privacy Needs

The new stimulus package, The American Recovery and Reinvestment Act [ARRA], fails to protect medical record privacy for injured workers. The new economic recovery package includes an appropriation of $19 Billion for the expansion of electronic health records [EHR] by funding intellectual technology. The legislation fails to include an essential prohibition on the dissemination and misuse of workers' compensation medical records.

The spokesperson for the Center for Healthcare Transformation and the Gingrich Group, stated that, "Privacy cannot be compromised, but neither can we compromise progress in pulling our health care system out of the technological Stone Age," ... "We need to find the right balance between privacy at all costs and progress at any cost."

The legislation should be expanded to protect the privacy of workers’ compensation medical records from misuse use. A coalition of legislators, including Rep. Edward J. Markey, Massachusetts Democrat, expressed deep concerns. Markey stated, "Medical information is probably the most sensitive and personal information that we have about ourselves. Without strong privacy safeguards, a health [information-technology] database will become an open invitation for identity thieves, fraudsters, extortionists or marketers looking to cash in on our medical histories." He further remarked that, "tough privacy safeguards" are necessary to reap the benefits of integrated health databases.

While the EHR is a noble project to increase overall efficiency and economy, the misuse of the data of injured workers remains a deep concern. The open door to this information left by the Health Insurance Portability and Accountability Act [HIPA] and ignored by ARRA must be addressed so that the medical records of our working wounded do not become a gold mine for unscrupulous exploitation..

Is It Your Employer’s Business if You Are Vaccinated?

Privacy issues have arisen as employers throughout the U.S. are mandating and/or encouraging COVID vaccinations. The U.S. Department of Health and Human Services [H.S.S.] recently issued guidance on workplace vaccinations and the Health Insurance Portability and Accountability Act (H.I.P.P.A.), 42 U.S.C.A. § 201 et seq. 

Surveillance Crosses the Privacy Line

Surveillance in workers compensation matters creates sensitive issues regarding privacy. The bright-line of what is public versus private becomes even more acute as employers and insurance companies investigate fraud concerns. When companies cross the line the consequences can be serious.

Several Montana attorneys have sought relief from a Court for what they call a breach of the privacy of the injured workers whom they represent. The attorneys allege that insurance fraud investigators, on behalf of a Montana insurance fund, have violated the privacy rights of their client by recording surveillance videos  and giving them to examining physicians, in order to facilitate reports that the injured workers are malingering.

The attorneys represent that  in over 800 instances, over the past several years, criminal surveillance tapes were unilaterally provided to defense medical experts to the detriment of their client's right to privacy. Harassment of injured workers creates fear that deters claims to benefit of employers and their insurance carriers. Inured workers have limited resources to fight such unscrupulous behavior. The attorneys in Montana had done a great pro bono and public service to take on Goliath on behalf of David. Hopefully the courts will balance the playing field and protect the rights of the injured worker from such tactics.

Workers' compensation was designed as a simple and equitable system. It was intentionally designed for the benefit of all the parties who participate in it. It is important that when the system becomes unbalanced that all the participants join in the effort equally to both redesign and rebalance the program.

For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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Medical Record Privacy: Does it Really Exist in a Workers' Compensation Claim?

Since before the evolution/promulgation of HIPPA, the nation's workers' compensation system has struggled with issues surrounding medical record privacy and dissemination of data. While establishing an aura of confidentiality, the nation's workers' compensation system has difficulty in maintaining strict medical record privacy.

Excluded from HIPPA, workers' compensation programs exchange huge amounts of medical records in order to efficiently and expeditiously process work related traumatic and occupational exposure claims. The balancing of interests continues to be an evolving process, especially in light of recent mass computer hacking of corporate entities and their employee data.

In a recent social media posting, John Geaney, Esq. defense attorney practicing in  NJ, describes how NJ employers and employee may obtain/exchange/disseminate medical records. Albeit that is only the tip of the medical records corporate iceberg/nightmare, the future remains even more uncertain as computer hacking escalates and national computer security issues become more involved and complicated. The future will even become more complicated as interests of stakeholders are increasingly challenged by technology.

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Privacy Limits for Social Networking: The Right To Be Forgotten

The explosive use of social media information as a discovery and an investigatory tool in workers' compensation matters may soon be reaching its limits as the European Union is proposing privacy data regulations. The proposed regulations would allow users to shut down and literally expunge their social media records. It would be enforceable with heavy economic sanctions against social media providers.


Click here to read : Europe Weighs Tough Law on Online Privacy (NYTimes.com)
"The proposed law strikes at the heart of some of the knottiest questions governing digital life and commerce: who owns personal data, what happens to it once it is posted online, and what the proper balance is between guarding privacy and leveraging that data to aim commercial or political advertising at ordinary people."

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US Supreme Court to Review Employee Privacy Issues

The US Supreme Court has granted certiorari in a case involving the application of the constitutional right to informational privacy to an employee questionnaire. NASA, et al. v. Nelson, Robert M., et al. No. 09-530, March 8, 2010.


The Supreme Court will be reviewing a 9th Circuit Court of Appeals decision involving contract employees of the Jet PropulsionLaboratory (JPL) who filed suit against the National Aeronautics and Space Administration (NASA) and others. The suit claims that contract employees in non-sensitive or “low risk” positions should not be required to submit to in-depth background investigations.


The Circuit Court below held:
We have repeatedly acknowledged that the Constitution protects an “individual interest in avoiding disclosure of personal matters.” In re Crawford, 194 F.3d 954, 958 (9th Cir.1999). This interest covers a wide range of personal matters, including sexual activity, Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir.1983) (holding that questioning police applicant about her prior sexual activity violated her right to informational privacy), medical information,Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir.1998) (“The constitutionally protected privacy interest in avoiding disclosure of personal matters clearly encompasses medical information and its confidentiality.”), and financial matters, Crawford, 194 F.3d at 958 (agreeing that public disclosure of social security numbers may implicate the right to informational privacy in “an era of rampant identity theft”). If the government's actions compel disclosure of private information, it “has the burden of showing that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet the legitimate interest.” Crawford, 194 F.3d at 959 (internal quotation marks omitted). We must “balance the government's interest in having or using the information against the individual's interest in denying access,” Doe v. Att'y Gen., 941 F.2d 780, 796 (9th Cir.1991), weighing, among other things:
“the type of [information] requested, ... the potential for harm in any subsequent nonconsensual disclosure, ... the adequacy of safeguards to prevent unauthorized*878 disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating towards access.”
Id. (quoting United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir.1980)) (alteration in original).
Both the SF 85 questionnaire and the Form 42 written inquiries require the disclosure of personal information and each presents a ripe controversy."

".....The balance of hardships tips sharply toward Appellants, who face a stark choice-either violation of their constitutional rights or loss of their jobs. The district court erroneously concluded that Appellants will not suffer any irreparable harm because they could be retroactively compensated for any temporary denial of employment. It is true that “monetary injury is not normally considered irreparable,” L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1202 (9th Cir.1980), and the JPL employees who choose to give up their jobs may later be made whole financially if the policy is struck down. "

Click here to read more about privacy issues and workers' compensation.

HHS Relaxes HIPAA Rules During COVID Pandemic

The US Department of Health and Human Services has published a “Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency,” that eases the enforcement of medical record privacy. As workers’ compensation providers increasingly employ electronic communication with their patients, these rules will have a major impact on how medical care is provided.

Facebook Delays New Privacy Policy

Today's post was shared by WCBlog and comes from bits.blogs.nytimes.com

Karen Bleier/Agence France-Presse Getty Images Facebook's proposed new privacy policy contained a shift in legal language that appeared to put the burden on users to ask Facebook not to use their personal data in advertisements. proposed new privacy policy contained a shift in legal language that appeared to put the burden on users to ask Facebook not to use their personal data in advertisements. Facebook has apparently decided to delay a proposed new privacy policy after a coalition of privacy groups asked the Federal Trade Commission on Wednesday to block the changes on the grounds that they violated a 2011 settlement with the regulatory agency. A spokeswoman for the F.T.C. confirmed Thursday that the agency had received the letter but had no further comment. In a statement published by The Los Angeles Times and Politico on Thursday afternoon, Facebook said, “We are taking the time to ensure that user comments are reviewed and taken into consideration to determine whether further updates are necessary and we expect to finalize the process in the coming week.” Asked about the delay, a Facebook spokesman said he was unaware of the latest developments. When it first announced the changes on Aug. 28, Facebook told its 1.2 billion users that the updates were “to take effect on September 5.” The changes, while clarifying how Facebook uses some information about its users, also contained a shift in legal language that appeared to put the...

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Major California Medical Record Privacy Breach Disclosed

The lack privacy of medical records in workers' compensation claims has perpetually been a huge concern for workers since Congress ignored requests to protect their dissemination. A recent disclosure in California that the medical records of 300,000 injured workers were available online to the public through a mere Google search further demonstrates that the system is failing workers.

"Identity Finder, LLC (www.identityfinder.com), a global leader in identity theft prevention and data loss protection (DLP), discovered that a website exposed documents containing hundreds of individuals health information and database files containing approximately 300,000 names and social security numbers of California residents who applied for workers' compensation benefits. Identity Finder notified the websites owners, Southern California Medical-Legal Consultants, Inc. (SCMLC), of the breach on May 11, 2011 and SCMLC restricted access to all files within minutes of notification."

Over the last two decades the erosion of the privacy of injured workers medical records has continued unabated. Workers who are injured on the job should not have their medical records published without restriction or limitation. Injured workers should not be subject to public humiliation and embarrassment through disclosure of their medical records. It is time for Congress to revisit the issue.

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ARE YOU OVEREXPOSING YOURSELF IN SOCIAL MEDIA?

Today's post comes from guest author Laurel Anderson, from Causey Law Firm.

By Laurel Anderson from Causey Law Firm

     Facebook, Twitter, YouTube, LinkedIn, Pinterest, Instagram and other wildly popular social media websites have transformed how people both connect with each other and obtain information about other people. It has also created a change in the legal arena. For our clients who are currently applying for or receiving workers’ comp time loss benefits, or Social Security Disability Insurance (SSDI) benefits, our advice is to keep in mind the importance of privacy settings for both written information and photos on their individual accounts. While a Washington State law went into effect this weekend barring employers from requesting access to Facebook passwords, if your privacy settings are not tight, curious parties can randomly obtain information about you.

While a Washington State law went into effect this weekend barring employers from requesting access to Facebook passwords, if your privacy settings are not tight, curious parties can randomly obtain information about you.

     From our experience, you can now assume that claims managers, employers, and defense attorneys will search for information on the internet regarding your personal life that can impact your claim for benefits. Please make sure that any outdated information regarding your activities is removed from your personal page. Do not use social media to vent about your employer or state agencies that are the decision-makers in your claim. You may be under the impression that only your friends can see your personal page, and that you have some right to privacy. However, be aware that all of the content on your walls, including photos and instant messaging, could be potentially discoverable by your employer or opposing counsel in a litigated case if the content is relevant to your claim for benefits.

     The risk is somewhat less in the SSDI arena since there actually is an agency directive to ALJs and DDS adjudicators that they are not to use social media to research claimants. We nevertheless warn our SSDI clients concerning social media, as we are not convinced that agency people are always playing by the rules, or that those rules may not soon change.

Photo credit: lindes / Foter / CC BY-NC-SA

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Facebook, Organ Donations and Medical Privacy of Workers' Compensation

 (Photo credit: Wikipedia)

The announcement of Facebook to allow for the public listing of organ donors of it social media site, albiet with good intentions, raises concerns about the privacy of workers' compensation claims as the organs could become a public commodity. The ramifications of commercialization of the process has raised issues on whether the privacy of organ beneficiaries can be maintained. Visions of yet another workers' compensation cottage industry emerging in human organ trade abound, adding yet another unregulated tier of potential dissemination of medical data.

Click here to read "Facebook’s New “Organ Donor” Feature: Many Applaud It, but Some Raise Possible Concerns About Protecting Private Health Information"

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Intimidation: Missouri Senate passes online database for workers' comp

Privacy is a basic premises of workers' compensation law and the State of Missouri is taking a major step to eliminate it and intimidate injure worker. Today's post is shared from therolladailynews.com An online database of workers' compensation claims would be created under legislation passed by the Missouri Senate. Under the measure, SB526, passed on Thursday, businesses could provide a potential employee's name and Social Security number to identify the date of workers' compensation claims and whether the claim is open or closed. Sponsoring Sen. Mike Cunningham, a Rogersville Republican, says the information is already available but only by written request. Supporters say the bill would help businesses control workers' compensation costs. A similar bill was vetoed by Democratic Gov. Jay Nixon last year. He cited privacy concerns and called it "an affront to the privacy of our citizens." Senators voted 26-7 to send the measure to the House.

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"Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act" a Corporate Giveaway

The following is a statement from American Association for Justice (AAJ) CEO Linda Lipsen in response to the U.S. House of Representatives passing H.R. 1927, the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act justice.org.:

“If I said Congress was considering a bill to shield Volkswagen from being held accountable for the fraud on its customers, and then combined it with a bill to protect companies that knowingly poisoned people with asbestos, no one would believe me. But that’s exactly what the House just passed. This is a bill that only helps corporations that killed and cheated people, plain and simple.

Senator Patrick Leahy Calls For Greater Transparency by Asbestos Companies

Statement of Senator Patrick Leahy Ranking Member, Judiciary Committee Hearing on “The Need for Transparency in the Asbestos Trusts”

Today the Judiciary Committee meets to discuss legislation that purports to promote more transparency in asbestos trusts.  Before we get into a detailed discussion about the merits of the proposed legislation, I want to make sure we all remember why we are here today.  For decades, millions of American workers were secretly poisoned.  Men and women who worked in our Nation’s factories, shipyards, mines and construction sites, and service members in the military, unknowingly inhaled air that was laced with asbestos—a substance so harmful that an individual can become critically ill simply by breathing.

Defense Firm Prohibited From Seeking Unfettered Medical Discovery

A defense firm, that had a “custom” of seeking unlimited medical discovery in workers’ compensation claims, was barred from utilizing that litigation tactic. The NJ Appellate Division affirmed the trial level decision of The Honorable Emille R. Cox, Supervising Judge of Compensation that prohibited requests for unlimited medical data.