HIPAA News

Healthcare Faces New Balancing Act in Sharing Health Data Under Revised FMLA Rules

(Dec 03, 2008)-- New Family Medical Leave Act (FMLA) rules from the Department of Labor put healthcare providers in more complicated positions in determining what information they may or may not share with employers when employees seek leave due to serious health conditions. The Nov. 17 regulation fails to provide extensive detail on how the FMLA interacts with the Americans with Disabilities Act (ADA), state workers compensation laws and state and federal substance abuse regulations -- all of which have their own patient confidentiality requirements.

Current Developments in Employment Law
As a result, healthcare providers will be at the center of attention and at the intersection of a variety of laws with different mandates for protecting patient information.

The FMLA regulations give healthcare providers more discretion in sharing information with employers to substantiate their medical opinions. However, healthcare providers still face new challenges in navigating the interplay of rules they must comply with because the FMLA overlaps with the ADA, state workers compensation laws, and federal and state substance abuse regulations as well as HIPAA.

Under the FMLA, employees must first give their healthcare providers permission to share information with employers, consistent with HIPAA requirements. However, even with a HIPAA compliant authorization, providers may be reluctant to share sufficient information with an employer. .

Key issues are the concepts of "intermittent leave" and "serious health condition" under the FMLA. Under the rules, employees may seek occasional medical leave under the FMLA for their own "serious health conditions."

One problem, however, is that there is no bright line between an FMLA serious health condition and a disability under the Americans with Disabilities Act or a covered situation under Workers Compensation laws. And it is far from clear how substance abuse laws fit into the category of "serious health conditions."

That means healthcare providers will be confronted with a confusing set of requests for information under the FMLA that may also trigger requirements under these other laws.

To help healthcare providers avoid the confusion, Health Information Privacy/Security Alert is sponsoring a 90-minute audio seminar:

Sharing Health Information Under the New FMLA Rules

Participants will be briefed on:

* What healthcare providers should require of employers requesting information to assure compliance with confidentiality laws;
* How healthcare providers can protect themselves from ADA and substance abuse rule violations when sharing information with employers;
* How FMLA requests for information relate to workers compensation law requests and where they may overlap;
* What information providers can share regarding employee relatives;

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