HIPAA and Workers’ Compensation

The HIPAA Privacy rule protects the privacy of your health,  treatment or health care payment information with the viewing, handling and storing of your protected health information (PHI).  The HIPAA Privacy rule is applicable to covered entities (persons/companies) and allows disclosures for workers’ compensation purposes: “A covered entity may disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers’ compensation…”. 45 CFR § 164.512(l)

The HIPAA privacy rule specifically excludes workers’ compensation insurers from the definition of a covered entity. In addition, the HIPAA privacy rule does not apply to the Workers’ Compensation Division (WCD) or most employers. The WCD, insurers, and self-insured employers need access to your health care records to provide workers’ compensation benefits. Oregon Revised Statues (ORS) 656.252, 656.254, and 656.265 specifically address the reporting requirements for workers’ compensation claims.

If you signed the First Report of Injury Form 440-801 and 827 forms, these documents will give medical providers and other custodians of your claim record the authority and responsibility to release relevant medical records to the insurer, the insurer’s representative, or the director of the department. If you have not signed the 440-801 or 827 forms, or if the person requesting your records is someone other than the insurer, the WCD director, you, or yours attorney, the requester may use the 440- 2476 or their own form as long as it  includes all of the elements of the 440-2476 form. Oregon Administrative Rules (OAR) discusses the issue of medical privacy and disclosure of relevant medical records for the purposes of workers’ compensation claims processing in OAR      436-010-0240. For more information review the HIPAA Privacy Rule Fact Sheet.

The August 14, 2002 Federal Register (Vol. 67, #157, pg. 53266-53273) states, HIPAA privacy rule does not preempt state workers’ compensation laws, and (Vol. 67, No. 157, pg. 53198) identifys, “[HIPAA] Privacy Rule is not intended to disrupt existing workers’ compensation systems as established by state law…the Rule is not intended to impede the flow of health information that is needed by employers, workers’ compensation carriers, or State officials in order to process or adjudicate claims and/or coordinate care under the workers’ compensation system.” For more federal HIPAA privacy information, review the publication Guidance Explaining Significant Aspects of the HIPAA Privacy Rule or call 866-627-7748.

Regarding psychotherapy medical records, the federal government and Oregon WCD state these records may be disclosed for workers’ compensation purposes; however, the disclosure must be limited to the relevant requirements; 45 CFR 164.508(a)(1)(ii) and 164.512(a)(1) and ORS  656.252 and OAR 436-010-0240(2). Therefore, if your psychotherapy notes are relevant to the determination of your workers’ compensation claim they may be disclosed.

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