A new decision from the Benefits Review Board addresses the use of medical records releases in Longshore and Defense Base Act claims. This is an important issue if for no other reason than medical records releases are an every-day part of administering and litigating claims. The decision is Mugerwa v. Aegis Defense Services.
What is a Medical Records Release?
Essentially, a medical records release is a document that the claimant signs to give a specified individual or business entity access to medical records. Claimants may hear this referred to as a “medical authorization” or “HIPAA release.”
Can a Court Compel a Claimant to Sign a Release?
The first question answered by the Board was whether an administrative law judge has the authority to issue an order compelling a claimant to sign medical releases as a part of the discovery process. Yes, the judge can issue that order.
But there are significant limits. We can’t forget that we are talking about medical records. There are privacy interests to consider. So, the Board devised a trade off between privacy concerns and the need to disclose relevant evidence:
“Weighing the competing interests identified in these cases, we hold that administrative law judges have the authority to compel claimants to sign narrowly-tailored medical releases when it is reasonable under the circumstances to do so.”
What if the Release is Not Narrowly-Tailored Or Reasonable?
The Board also addressed the method that can be used to challenge an overly-broad records request. The claimant should answer discovery requests as required; but if the records request is too broad, then the claimant should file an objection. Per the Board:
[C]laimant’s compliance with the discovery employer has propounded does not limit employer’s right to see additional evidence – at least until such time as claimant objects and the administrative law judge finds that further discovery is unwarranted.
Essentially, if the requesting party seeks information with a request that is too broad or unnecessary, then the remedy is to seek court intervention. Note that parties are still under an obligation to speak with one another to try and work out differences before filing discovery motions with the court. Since, “medical release forms are a permitted method for discovery,” the parties will have to certify that they conferred in good faith to resolve the authorizations issue before filing any discovery motions.
How Can An Employer/Carrier Get the Signed Releases?
The onus is on the Employer/Carrier to move to compel signed medical records releases. The Employer/Carrier must “establish a reasonable inference of the existence of additional relevant records in light of claimant’s assertion that he has produced all relevant records.”
When considering the Employer/Carrier’s motion, the judge will first determine if the Employer/Carrier is entitled to the releases:
If the administrative law judge finds that claimant has acted in good faith by producing his relevant medical records and employer has not shown the likely existence, relevance, and necessity of the additional requested medical information, the medical release forms are unnecessary, and the administrative law judge should deny employer’s motion to compel.
If, however, the administrative law judge finds that claimant has acted in good faith but employer has shown the relevance and necessity of medical information held by a medical provider, or if employer establishes claimant has not acted in good faith, then the medical releases may be warranted.
What About the Scope of the Releases?
Even if the releases are warranted, there is yet another inquiry that the ALJ must consider: the scope of the releases. And it is important to note how the Board phrased this obligation. It is a “must do:”
If [the releases] are needed, the administrative law judge must greatly narrow their scope or must order the parties to work together to generate mutually-agreeable medical release forms.
Time will tell how narrow the scope of a records release should be. For now, however, the Board offered real-life examples of “egregious” medical records releases. For the Ugandan claimant in this claim, there were two releases that the Board addressed, one from Tangiers, the other from AIG.
The Tangiers release applied to any “past, present, or future physical or mental health or condition . . . [and] includes information on the diagnosis and treatment of mental illness and the use of alcohol, drugs and tobacco.” Further, the release authorized a bevy of people and entities–including “consumer reporting agencies, travel organizers, airlines, hotels [and] any other person who may have knowledge about [the] claim”–to release protected information. The Tangiers release also authored the employer or any of its representatives (like the insurance company or plan administrators) to contact by telephone, in person, or in writing any of the claimant’s health care providers. It even called for the release of information about the Claimant’s dependents.
As for the AIG release, it would “expressly authorize and direct all of [claimant’s] physicians and health care providers, now and int eh future to disclose [his] protected health information . . . .” This meant all medical records, including psychiatric records, even though the claimant’s injury was only a physical injury.
The Board determined that the Tangiers and AIG releases “would authorize an expansive release of plainly irrelevant medical and personal records . . . .” And the Board wasn’t having it: “The resulting invasion of privacy far outweighs any reasonable purpose such broad releases could serve in defending this claim.”
Following Mugerwa, insurance carriers, investigative companies, nurse case managers, attorneys, and everyone else involved in the administration and defense litigation of Longshore or DBA claims are likely taking a hard look at their standard release forms. And not just for U.S. citizens, but for foreign nationals too. As the new Board decision filters through the Longshore and DBA community, there will likely be some Mugerwa challenges both to new authorizations and previously-signed authorizations. Hopefully, however, some of the more egregious tactics–like threatening to cut off benefits unless a blank medical records release is signed by the claimant or refusing to administer the claim without a blank authorization–will end.