12-15-14; Please Release Me, Understanding HIPAA-GINA; Reviewing the IL WC System in a "Kleptocracy"; Important Medical Bill Collection Ruling, analysis by Lindsay Vanderford, JD and much more
/Synopsis: Please Release Me!! How HIPAA-GINA Work to Protect/Regulate All of Us in Workers’ Comp Claims.
Editor’s comment: We get asked all the time and we want our readers to best understand HIPAA-GINA in your day-to-day WC claims handling. If you aren’t sure, HIPAA is about medical records privacy. GINA is about genetic privacy in medical records and any other records you might keep about your workers. These two concepts are federal law to which we are all subject. As defense lawyers, we assure everyone you can’t skip the requirements of federal law if you handle U.S. workers’ comp claims.
What is initially confusing about HIPAA-GINA is the U.S. Department of Labor has an “exception” to the laws for workers’ comp claims. Every reader and anyone attending one of our many presentations/webinar always asks what in tarnation that might mean. No one initially understands what an “exception” to a federal law could be. They don’t have “exceptions” to traffic laws, do they?
For clarity, the “exception” to HIPAA-GINA is on the web at 45 CFR 164.512(l) (Download a copy in PDF). It starts by saying:
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.
In short, if you have a workers’ comp claim, you may not have to worry about HIPAA-GINA, if the stars align and everyone knows the rule above and follows it. The problem is medical care givers, doctors and hospitals may or may not know the “exception” and typically don’t care—they still want a signed HIPAA-GINA release to be sure they are routinely following the law.
Why is that a good idea for doctors/hospitals and other folks in that industry? Well, we ask all of our readers—when is a claim for accident or exposure truly a workers’ compensation claim? The simple answer to this question is—no one knows! By that we mean, if you slam your foot into a wall at work, it is up to you to decide whether you want the necessary medical care to be workers’ compensation or group health. If you are embarrassed about a safety mistake and/or don’t want your employer to deal with your foot injury as a work comp matter for whatever reason, it isn’t a work comp claim! You can actually later decide you want work comp coverage which would make access to medical records fall under the “exception” above. You might then withdraw the claim which would put access to your records outside the exception. It is also possible either the injured/ill worker or their selected attorney might withdraw their HIPAA-GINA release and demand all medical records be kept completely secret. They might sue you under HIPAA-GINA if you won’t follow their wishes. In short, the applicability of the HIPAA-GINA exception for WC claims may be contingent on numerous ever-changing factors. For that reason, we consider reliance on the exception to be a claims mistake.
Our advice to everyone in the industry is to routinely have your injured/ill workers who are claiming the injury/illness is related to work complete:
· An Accident/Work-Related Illness Investigation Form;
· A HIPAA-GINA compliant release.
We suggest such documents be combined into one longer form. If you need a copy of our accident investigation/HIPAA-GINA release forms, send a reply and we will shoot them to you via email at no charge.
If you have a signed HIPAA-GINA compliant form, you have full and complete access to printed and electronic copies of medical records and bills. You won’t then care if the claim is workers’ comp or not workers’ comp—you still have the ability to obtain and safely store the records. You won’t need to rely on the “exception” above in any way.
Don’t I Have to Keep the Medical Records/Bills Safe and Private?
Youbetcha! All medical records and bills should come with an implied privacy stamp on them. We don’t mean you have to print the word “private” on them but you have to be sure they are all kept private and away from prying eyes. If you don’t, you may get sued. One question we ask corporate safety/risk managers in our readership—do you have a fax machine or computer in your office used for transmission of medical records/bills open to viewing or use by workers that aren’t in safety/risk management? If you have such a fax machine or computer, we assure you that you are breaking U.S. law. Any fax machine or computer that is used to receive medical records and bills has to be in a locked office that is only accessed by your HIPAA-GINA “privacy circle” managers. If you need assistance with this concept, send a reply.
How Does This Apply to WC Nurse Case Managers?
It applies the same way it applies to adjusters.
Ø If you have our signed HIPAA-GINA release, you have full authority from the patient to get medical records and bills and forward to the insurance carrier/TPA.
Ø If you don’t have a signed HIPAA-GINA release, you are taking a chance to get medical records and bills but should be protected under the “exception” above.
Ø If you have a signed HIPAA-GINA release and the release is withdrawn by claimant or counsel as they are entitled to do under federal law, it is problematic to rely on the “exception” and we recommend not doing so.
If the release is withdrawn, our vote is to work out a deal on “transparency” with Claimant and/or their counsel to insure the attorneys are getting the same reports as the insurance company/TPA. Happy to explain.
Wassup with this GINA Thing?
If you are routinely asking your workers about family history of heart attack, stroke or other medical conditions at any time, you have to have a signed GINA compliant release or you may be violating U.S. law. Our vote is to get such questions out of any document you are using. The Feds went after an employer that didn’t know the new and hard-to-understand rule and got a $100K settlement from them to demonstrate the seriousness of genetic privacy.
We appreciate your thoughts and comments. Please post them on our award-winning blog. We remind you we are offering out HIPAA-GINA complaint release free of charge—just send a reply.
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Synopsis: Understanding the IL WC System in What Some Are Now Calling a “Kleptocracy.”
Editor’s comment: We saw this new term in the Chicago Tribune and will let you draw your own thoughts on whether the State of Illinois can be fairly termed a “kleptocracy.” The term is defined as a form of political and governmental rule where the government exists to increase the personal wealth and political power of its officials and government workers at the expense of the wider population, often with the pretense of honest service. The term is mildly misleading as there is an implication kleptocrats are “stealing”—you can’t truly “steal” when you have the appropriate legal authority to give yourself and your buddies buckets of taxpayer money. Not an "official" form of government (such as democracy, republic, monarchy, theocracy), the term is a pejorative for governments perceived to have a systemic problem with the selfish appropriation of public funds by those in power. The effects of a kleptocratic regime or government are typically adverse to the state's economy, political affairs and civil rights. Kleptocracy in government vitiates prospects of outside investment and drastically weakens cross-border trade. As the kleptocracy normally takes money from its citizens via tax payments, a kleptocratically structured political system tends to degrade nearly everyone's quality of life. In addition, the money kleptocrats take is sometimes derived from funds earmarked for important public needs, such as the building of hospitals, schools, roads, parks and the like which has further adverse effects on the quality of life of the citizens. The quasi-oligarchy that results from a kleptocratic elite also subverts democracy or any other political format.
We Ask You—is Illinois State Government a Kleptocracy?
Please note our past IL Governors and state legislature have blown/spent/squandered over $110,000,000,000 with most of it being spent on pensions and other lavish benefits for retired state workers. Illinois state workers may have locked in their lifetime benefits, including healthcare in the “You-Can’t-Ever-Change-Our-Pensions-Clause” in the kleptocratic Illinois state constitution.
The worst IL state pension program by a mile is the Legislative Retirement System or LRS. As you read this, that system by itself is costing state taxpayers over $100M a year and rising. To our understanding, that system routinely pays more money to retired legislators than they made while working in part-time jobs. Please also remember that program is not being “reformed” and is not the subject of the litigation currently before the IL Supreme Court. Please also note all retired legislators gave themselves a lifetime 3% compounded boost every year. Please further note all retired Illinois state workers receive taxpayer-paid lifetime health care coverage on the taxpayer’s dime—that seems kleptocratic to us.
With deepest respect to a great woman and politician who recently passed away, we always felt former Comptroller Judy Baar Topinka was a “reluctant kleptocrat” who wanted the salaries of state workers to be out there on the web for all to see. She also received a state legislative pension of about $180K a year when she might have contributed a tiny fraction of that lifetime amount in the six years she was in the Illinois legislature. Judy Baar Topinka’s annual income also demonstrated a very irritating aspect of the “pension” program in this kleptocratic state—she was on a pension that was almost fully paid by your current tax dollars without actually retiring. If you aren’t sure, Ms. Topinka’s annual income from the Comptroller’s job and her pension was well over $300,000.
How Does Kleptocracy Affect Our IL WC System?
Well, that happens in lots of ways at high cost to Illinois taxpayers at the local, regional and state levels. As we have advised:
v Firefighters in this state don’t have to be working when injured to receive workers’ compensation benefits—the Kleptocrats in Springfield passed a law creating a presumption of WC coverage for veteran firefighters who become injured or ill while admittedly off work. Do you feel a firefighter at a Sox game with his kids who has an unexpected stroke should get lifetime WC benefits on your dime?
v Police officers and firefighters who are injured at work and can no longer return to their official duties are given generous line-of-duty disability benefits—that benefit makes sense to most folks. As a demonstration of how WC works in a kleptocracy, the Illinois Workers’ Compensation Commission also gives such workers generous and legislatively undefined “loss of trade” benefits, as something of a going-away present from unknowing taxpayers. The words “loss of trade” are not contained in the Illinois Workers’ Compensation Act so we consider it impossible to argue/appeal for the relative value of such a permanency award—how much is “loss of trade” supposed to be?
v As another example of kleptocracy, we are certain there may be hundreds and maybe thousands of State of Illinois and City of Chicago workers who become disabled from work and then are cast aside in what would otherwise be an obvious violation of the Americans with Disabilities Act when the two governments will not accommodate their disabilities or find them alternative jobs. The reason such workers don’t ever file a beef is purely kleptocratic—they are routinely given “odd-lot” total and permanent disability benefits that can be as much as $70,000 a year or more on a lifetime, tax-free basis. Such benefits now come with annual COLA kickers which our Springfield kleptocrats added about a decade ago. All of the money for such benefits come from taxpayers—there is no “contribution” like there is in the hilariously misfunded state pension systems.
v In the kleptocratic WC claims management programs for both the State of Illinois and City of Chicago, everything is kept hush-hush. To our understanding both of our state’s largest governments spend well over $100M a year to give taxpayer dollars to government workers. If anyone in the private sector gave away that much WC money to their workers, you would certainly be fired and/or the company would go broke. Oooops, both governments are rapidly approaching insolvency. We have never seen anyone at either government start a WC cost-savings program or seek consultants to cut WC costs, like we saw with the City of Springfield and other local governments. For one example, take a look http://www.sj-r.com/article/20130224/News/302249938.
We do feel injured state and city workers should be taken care of and don’t oppose reasonable benefits for such workers. We don’t feel pensions, workers’ comp, group healthcare or any state benefit should be provided in a fashion similar to winning the lottery. We hope the great minds and managers in incoming Governor-elect Bruce Rauner’s administration can start to address some of these anomalies and make stronger sense of Illinois government moving forward.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: Medical Billing/Debt Collection Ruling of Note for Hospitals/Doctors/NCM’s Trying To Collect Unpaid Bills.
Editor’s comment: The federal Seventh Circuit Court of Appeals held it is a Fair Debt Collections Practices Act (“FDCPA”) violation to file a collection action outside of a debtor’s hometown municipal court. Analysis by Lindsay R. Vanderford, JD.
In Suesz v. Med-1 Solutions, LLC, the Seventh Circuit retroactively altered common practice in medical bill collection and other similar cases. In doing so, the Court’s decision requires collection cases to be filed in the Cook County Suburban Municipal District where the debtor lives or where the contract was signed. If not filed there, then it is an FDCPA violation. The Suesz case was remanded to the Southern District Court of Indiana for further proceedings. More recently, a petition for a writ of certiorari was filed with the United States Supreme Court.
On July 2, 2014, the Seventh Circuit ruled that filing a collection case in a municipal court other than where the debtor lives or the originating contract was signed was a violation of the FDCPA. In Suesz, a consumer filed a class action lawsuit against a medical billing collections agency alleging its regular business practice was to file lawsuits in small claims courts located in townships where the consumer neither lives nor signed the contract that created the debt. In doing so, the consumer alleged the medical billing collections agency violated the FDCPA.
Plaintiff lived in Hancock County, Indiana. He entered into a contract with a hospital in Marion County, Indiana. Marion County is divided into several townships, each of which has its own small claims court. The collection agency sued the consumer in Pike Township Small Claims Court. The provider to whom the debt was owed is located in Lawrence Township. Explicitly, the FDCPA requires debt collectors to sue consumers in the "judicial district or similar legal entity" where the consumer lives or where the consumer signed the contract being sued on. See 15 U.S.C. §1692i(a)(2).
Notably, the Suesz Court determined FDCPA does not define the term "judicial district." After a lengthy discussion of the various means of defining the term, the Seventh Circuit held "the relevant judicial district or similar legal entity is the smallest geographic unit relevant for venue purposes in the court system in which the case was filed, regardless of the source of the venue rules." The Suesz Court also expressly overruled Newsom v. Friedman which held the six municipal districts in the Circuit Court of Cook County were not “judicial districts” under the FDCPA. The Circuit Court of Cook County is divided into six municipal districts, each of which has its own courthouse. Each courthouse handles small claims lawsuits, inter alia. Prior to the Suesz decision, debt collectors filed their small claims actions against Cook County residents at the Richard J. Daley Center, which services Cook County’s First Municipal District. In doing so, debt collectors relied on the Newsom decision.
The Suesz holding’s retroactive application is particularly troubling. The Seventh Circuit was asked to overrule Newsom without retroactive application as debt collectors were relying on Newsom when filing their lawsuits. The court declined to do so stating, "reliance on prior law is insufficient in itself to justify making a new judicial ruling prospective." It further noted reliance on the opinion of one intermediate appellate court was not justified as one decision did not rise to the degree of certainty necessary for such reliance.
The Suesz Court's retroactive application creates a significant problem for debt collectors in Cook County. Many of the small claims cases on file at the Richard J. Daley Center as of the July 2, 2014 date of the decision could potentially violate the FDCPA's venue provisions. Any lawsuit that should have been filed at the courthouses located in Skokie, Maywood, Rolling Meadows, Bridgeview, or Markham could trigger liability under the FDCPA. An immediate motion to transfer to the appropriate Municipal District is a necessary move for our readers involved in such litigation.
We recommend retaining counsel familiar with the FDCPA when attempting to collect on an unpaid debt. In doing so, call a KCB&A attorney to determine how to properly bring your cause of action in the correct venue in order to avoid the FDCPA’s harsh penalties.
This article was researched and written by Lindsay R. Vanderford, JD. Lindsay can be reached with questions regarding collection actions and workers’ compensation at lvanderford@keefe-law.com.