In summary, this analysis focuses on the two primary components of the AB 435 (Sect. I and II)
- Section I Disclosure of HIV Status
AB 435 adds Labor Code section 56.31 which eliminated the exemption regarding the release of HIV related information in the administration of a workers' compensation claim unless claimed industrial injury is work related. Release of this medical information requires an authorization from the claimant.
- Section II Restricting the Disclosure of Medical Information (two exceptions apply)
"An insurer, third-party administrator retained by a self-insured employer pursuant to Section 3702.1 to administer the employer's workers compensation claims and those employees and agents specified by a self insured employer to administer the employer's workers' compensation claims, are prohibited from disclosing or causing to be disclosed to an employer, any medical information, as defined in subdivision (b) of Section 56.05 of the Civil Code, about an employee who has filed a workers' compensation claim", exceptions for release of medical information are:
- If the diagnosis of the injury for which workers' compensation is claimed would affect the employer's premium, then an insurer may disclose that diagnosis pursuant to subdivision (a), or
- Medical information regarding the injury for which worker's compensation is claimed that is necessary for the employer to have in order for the employer to modify the employee's duties.
Medical information is defined in the code as " any individually identifiable information in possession of or derived from a provider of health care regarding a patient's history, mental or physical condition or treatment. Medical information includes treating physician reports, med/legal reports, hospital, pharmacy records, and subpoenaed records from health care providers,etc.
Per the CWCI analysis, information provided regarding the claim is to be "couched" in terms of workers' compensation benefits and obligations. Different insurance carriers will define and draw the line differently to meet these new stringent requirements.
There is concern about the inconsistencies of the Bill which range from what is the true definition of "diagnosis" to what is the full scope remedies and sanctions which could apply. Plans toward amending the Bill in some fashion are pending. A meeting took place with a representative of the author of the Bill on January 28th. The law's sponsor met the first deadline for amending the statute for in time for "clean up "bill. The deadline for introducing the" cleanup" bill in the Legislature if Feb. 25. See (www.assembly.ca.gov) for year 2000 tentative legislature calendar. Attached below, is a draft of some of the proposed changes. The italicized text reflects the proposed changes. This draft does not reflect all possible proposed changes as the defense community is also trying to get language included to allow more access to certain medical reports.
At this time most of our primary workers' compensation carriers are complying with the law by limiting the information they provide to diagnosis and work restrictions. Most on line claim access systems to our carriers at this time have been taken away or limited to only financial data. Some are working on a solution to restore claim notes access absent restricted medical information, Argonaut has already reprogrammed their on line system. Claim reviews have continued to be granted but the status reports provided, in most instances, no longer include any prior text which contained detailed medical information. We continue to stress to clients that the new bill does not alter their existing ability to continue to get medical information directly from the occupational clinic. In many instances, the client may be able to obtain more medical information related to the industrial injury from the occupational clinic, versus from the insurance carrier, TPA, etc., based on the restrictions of AB435.
We will provide a further update as more relevant information becomes available.
