August 31, 2018
Author: Paul R. Lynch
Organization: Craig & Craig, LLC
I. Litigation And Other Special Considerations In Releasing Medical Records
Introduction: The Effect of H.I.P.A.A.
This section is not intended to include a comprehensive or detailed review of the Health Insurance Portability and Accountability Act of 1996 (H.I.P.A.A.), and regulations issued thereunder. H.I.P.A.A., however, has had a definite impact upon a number of the procedures and issues that are discussed below. When “protected health information” is involved, the standards and requirements of the H.I.P.A.A. regulations preempt any contrary provisions of State law, with certain exceptions. See 45 CFR 160.203.
The pertinent exceptions to the general rule that H.I.P.A.A. preempts State law with regard to the disclosure of protected health information are as follows:
(1) When a provision of State law regarding the privacy of individual health information is “more stringent” then a standard or requirement of H.I.P.A.A. and its regulations. See 45 CFR 160.203(b).
(2) When the provisions and procedures of State law provide for the reporting of (a) disease or injury, (b) child abuse, or (c) the conduct of public health surveillance, investigation, or intervention. See 45 CFR 160.203(c).
A. Access To Medical Records In, And Prior To, Legal Proceedings
1. Compliance With Requests For Medical Records: Illinois Statutory Provisions And Practical Considerations
Specific statutory provisions govern the production of medical records in response to a request for records in Illinois. 735 ILCS 5/8-2001 applies to health care facilities, including hospitals, ambulatory surgical centers, nursing homes and similar entities; and to physicians,dentists, clinical psychologists, clinical social workers, and other health care practitioners. The key rules and procedures established by this statute for health care facilities, physicians, and other health care practitioners for responding to a request for records are as follows:
1. The request to examine or copy records must be made by the patient “or any person, entity, or organization presenting a valid authorization for the release of records signed by the patient or the patient’s legally authorized representative.”
2. The request authorizes the inspection and copying of records by the patient, his or her health care practitioner, authorized attorney, or any person, entity, or organization presenting a valid authorization for the release of records.
3. Maximum charges that may be made by the health care facility or practitioner are subject to an annual cost-of-living adjustment on January 20 of each year, pursuant to 735 ILCS 5/8-2006. The maximum charges for 2014 are established as follows:
(a) $26.38 handling charge for processing the request for copies.
(b) 99 cents per page for the first through 25th pages.
(c) 66 cents per page for the 26th through 50th pages.
(d) 33 cents per page for all pages in excess of 50.
(e) Fifty percent (50%) of the per-page charges listed above for records retrieved from scanning, digital imaging, electronic information or other digital format (but not including microfiche or microfilm).
(f) $1.65 per page for any copies made from microfiche or microfilm.
(g) Actual shipping costs.
(h) “Reasonable costs” for duplication of materials such as x-ray films or pictures that cannot be routinely copied or duplicated on a standard photocopy machine.
Under 735 ILCS 5/8-2006, the annual cost-of-living adjustment of the fees listed above shall be determined by the Comptroller of Illinois, and made available to the public via the Comptroller’s official website by January 31 of every year. The Comptroller’s web page that currently contains the annual adjustment of copying fees is found at: http://www.ioc.state.il.us/office/fees.cfm
4. Records already maintained in an electronic or digital format shall be provided in an electronic format when so requested. If the records system does not allow for the creation or transmission of an electronic or digital record, then the facility or practitioner shall inform the requester in writing of the reason the records cannot be provided electronically.
5. The health care facility or health care practitioner must comply with the request for records within thirty (30) days of the receipt of the written request. If the care provider needs more time to comply with the request, then within thirty (30) days after receiving the request, the provider must give the requesting party a written statement of the reasons for the delay and the date by which the requested information will be provided. In any event, the requested information must be provided no later than sixty (60) days after receipt of the request. Failure to comply with this time limit “shall subject the denying party to expenses and reasonable attorneys’ fees incurred in connection with any court ordered enforcement” of the statute.
6. A health care facility or health care practitioner must provide the public with at least 30 days prior notice of the closure of the facility or the health care practitioner’s practice. The notice must include an explanation of how copies of the facility’s records may be accessed by patients. The notice may be given by publication in a newspaper of general circulation in the area in which the health care facility or health care practitioner is located.
It is now mandatory that a written request for medical records comply with the requirements of H.I.P.A.A. An example of a “H.I.P.A.A.-compliant” form of Authorization for Release of Health Information is as follows:
AUTHORIZATION FOR RELEASE OF HEALTH INFORMATION
Name: ________________________________________________________________________
Date of Birth: _______________ or Social Security Number: _____________________
I authorize _____________________________________ to release health information to
____________________________ or [his] [her] agent, _______________________, pursuant to 735 ILCS 5/8-2001. I authorize the use or disclosure of the named individual’s health information as described below for the purpose of.
Information To Be Released:
Entire medical record (to include ER records, admission and discharge summaries, dictated reports and consults, operative and procedure reports, intraoperative and procedure flow sheets, informed consents, physician orders, progress notes, nurses’ notes, flow sheets, medication and transfusion records, test results, labs, pictures, pathology reports, EKGs, fetal monitoring strips, office records, immunization records, growth charts, telemetry strips, radiology and other diagnostic reports, patient instructions).
? Any and all
? Last 5 years
? Other (specify)
Record abstract (history and physical, progress notes, lab, radiology, operative report, pathology report, consultation report, and diagnostic tests).
? Any and all
? Last 5 years
? Other (specify)
Radiology and other diagnostic imaging films, pictures, and/or CD-ROM (X rays, CT scans, MRI, ultrasound, angiogram, diagnostic procedure, etc.), unless otherwise specified.
? Any and all
? Last 5 years
? Other (specify)
? Pathology slides.
Describe: _______________________________________________________________
? All medical and related bills related to the above-requested information.
I authorize the use or disclosure of the above-named individual’s health information as described below for the purpose of . The following items must be checked and initialed to be included in the use and/or disclosure of other health information:
? HIV/AIDS-related treatment
? Sexually transmitted diseases
? Mental health
? Drug/alcohol diagnosis, treatment/referral.
? I understand that I may revoke this authorization in writing at any time, provided that I do so in writing to __________________________ or its agent, except to the extent that the records have already been released. Unless revoked earlier, this authorization will expire 12 months from the date of signing or until [insert applicable date or event].
? I understand authorizing the disclosure of health information is voluntary. I can refuse to sign this authorization. I understand that if the person or entity receiving the information is not a healthcare provider or health plan covered by federal HIPAA privacy regulations, the information described above may be redisclosed and no longer protected by these regulations. However, the recipient may be prohibited from disclosing substance abuse information under the federal substance abuse confidentiality requirements.
? I acknowledge that I have received a copy of this authorization. ___________________________________________ ___________________, 20__
Signature of Patient or Patient’s Legal Representative
___________________________________________
Print Patient’s Name
___________________________________________ ________________________
Print Name of Legal Representative (if applicable) Relationship to Patient
Obviously, the Authorization form must be reviewed carefully upon receipt, since the requests appearing in the Authorization can be narrow and very specific. Requests for records can be, and sometimes are, specifically limited in scope. A records request may be limited to records generated during a designated period of time or between specific dates. Sometimes an attorney requesting hospital records does not want copies of voluminous nursing notes or laboratory reports, and the records request might be limited to items such as history and physical, physician orders, physician progress notes, operative summary, and discharge summary or clinical resume. The H.I.P.A.A. Authorization is clearly formatted to designate and specify such limitations.
In reality, in this author’s experience, it is very common to request the “entire medical record” of a patient for a designated time period, and “all medical and related bills.” Requests for mental health records, etc., are considerably less common.
In this author’s experience, larger hospitals and the offices of physicians who regularly treat patients with traumatic injuries, such as orthopedic surgeons, generally process requests for medical records routinely and uneventfully. Medical practitioners who are less experienced with lawyers and the legal system, however, occasionally become defensive and even uncooperative after receiving a records request. Failure to cooperate fully and completely with a medical records request, however, is ultimately pointless and self-defeating. Attorneys requesting medical records on behalf of a patient are not always contemplating litigation against a physician or hospital, and it is highly likely that the records are being requested for an altogether different purpose. Even if an attorney is contemplating medical malpractice litigation, full cooperation and production of a complete set of records may serve to persuade the attorney that he or she does not have a case against the hospital the hospital or medical practitioner that is worth pursuing.
Even in the “worst-case scenario,” when malpractice litigation ultimately is filed against a medical practitioner or hospital, the Defendant gains nothing, and may have harmed the defense of the case, by having been uncooperative or incomplete in responding to requests for medical records. Representing physicians who have been sued in cases of alleged medical malpractice, this author has found with surprising, and distressing, frequency that a significant number of physicians do not produce a complete set of copies of their medical records after receiving a written request for records prior to the filing of suit. For example, in response to a request for records, the Defendant may have produced copies of his office progress notes for the patient, but not other documents in the physician’s office chart for the patient, such as “physician copies” of key hospital records, copies of correspondence and records from other physicians, or copies of telephone messages. Another example is that a physician may take it upon himself or herself to produce only records starting with a particular occurrence or treatment of a particular injury, and withhold earlier treatment records, despite the fact that the written request contained no such limitation. When asked about these omissions, the Defendant physician may say something like, “I didn’t think I had to produce those.”
When the Defendant received an unlimited request for copies of all of his or her records pertaining to the patient for a designated time period, however, he or she must literally produce every piece of paper in the office chart for that patient, regardless of its source or description. Failure to do so may very well give the aggressive Plaintiff’s attorney an argument against the Defendant “on a silver platter.” If anything in the records that were not produced is unfavorable to the Defendant’s position in the litigation, the Plaintiff’s attorney is likely to try to develop an argument that, however misleading and unfair, that the Defendant intentionally withheld the unfavorable document after receiving the request for records, because it was unfavorable! By failing to produce everything in the patient’s chart, the Defendant may create a completely needless problem for himself or herself.
2. Responding To A Subpoena.
A written request for records on behalf of a patient can occur before or during litigation, and may not involve legal proceedings at all. On the other hand, in general, a subpoena for records is processed only in connection with a pending lawsuit or other legal proceedings. A subpoena does not require the patient’s consent. A subpoena is issued under the authority of the court or administrative tribunal in which the legal proceeding is pending.
In the H.I.P.A.A. era, most litigation attorneys have become very cautious about the use of subpoenas to obtain medical records. Indeed, 45 CFR 164.512 contains some very specific requirements with regard to use of subpoenas to obtain medical records. For a party in litigation to obtain medical records without written patient authorization, H.I.P.A.A. requires that the request be accompanied by either (a) a statement that the patient has been given notice of the request and has had an opportunity to object, or (b) a motion for a qualified “protective order.” See 45 CFR 164.512(e). A qualified protective order requires that any protected health information can be disclosed only for the purposes of litigation, and that any protected health information disclosed must be returned to the provider at the end of litigation. See 45 CFR 164.512(e)(1)(v).
For a person or entity responding to a subpoena for medical records, it is important to note that 45 CFR 164.512(e) requires that additional documentation must accompany a subpoena, showing that the patient was given notice of the request and an opportunity to object to it. The party seeking the information must also state that the deadline for objections has passed, and that no objections were raised, or that all objections raised by the patient have been resolved by the court, and that the disclosures being requested are consistent with the court’s decision.
When a subpoena is issued and served, the patient’s attorney must be notified and served with a copy of the subpoena. If there are additional objections to the subpoena, for any reason, the patient’s attorney has the opportunity to make those objections known to the hospital, physician, or other practitioner, and to seek a ruling by the court on those objections. If the patient’s attorney does not communicate objections to the hospital, physician or other practitioner, then compliance with a proper subpoena for medical records is mandatory. The description of the requested records appearing in a subpoena often “tracks” the language of the H.I.P.A.A. Authorization, and the same care should be used by a party responding to a subpoena to provide only the records that fit the description in the subpoena. In civil lawsuits, under Illinois Supreme Court Rule 204(a), the party issuing a subpoena for documents must schedule a deposition of the person to whom the subpoena is directed. Under Illinois Supreme Court Rule 204(a)(1), “The Subpoena may command the person to whom it is directed to produce documents or tangible things which constitute or contain evidence...” at the time and place of the deposition. Rule 204(a)(4), however, establishes the following procedure that is very commonly used by Illinois Attorneys:
Production of Documents in Lieu of Appearance of Deponent. The notice, order or stipulation to take a deposition may specify that the appearance of the deponent is excused, and that no deposition will be taken, if copies of specified documents or tangible things are served on the party or attorney requesting the same by a date certain...
When this procedure is used, the party or attorney issuing the subpoena must serve copies of the documents produced upon the other parties at least three days prior to the scheduled deposition. Under most circumstances, attorneys prefer to have a “records custodian” respond to a subpoena by sending copies of the requested records, rather than actually conducting a time-consuming “records deposition.”
In civil cases, a subpoena for records is much more often used by an attorney for a party adverse to the patient, as opposed to the patient’s own attorney. Under the rule established by the case of Petrillo v. Syntex Laboratories, Inc., 148 Ill.App.3d 581, 499 N.E.2d 952 (1st Dist. 1986), an attorney for a party adverse to the patient may not communicate privately or “ex parte” with a physician or other health care provider regarding a patient’s treatment, outside the presence of the patient’s attorney. Accordingly it should not be taken as surprising if telephone calls from a medical records “custodian” to the attorney issuing a subpoena for medical records go unreturned!
As a practical matter, the same concerns for cooperation and completeness on the part of a party responding to a patient’s written request for records, as described above, also apply to a party responding to a subpoena for records. Care should be taken to study the specific description of the records that appears in a subpoena and to produce every document that reasonably fits that description. There are no circumstances in which a medical practitioner or hospital can gain any advantage by failing to comply fully and literally with a subpoena for records.
An issue that comes up with surprising frequency is whether a health care provider responding to a subpoena for records issued by the Workers’ Compensation Commission is entitled to charge for producing copies. Under the Workers’ Compensation Act, the First District Appellate Court in Chicago ruled on the issue of copy charges in the case of Clayton v. Ingalls Memorial Hospital, 311 Ill.App.3d 135, 724 N.E.2d 222 (1st Dist. 2000). The Court in Clayton held that a subpoena for records issued under the Workers’ Compensation Act requires only payment of the witness fee of $20.00 per day, and the travel fee of 20 cents per mile. The Clayton decision holds that the subpoenaing party is not required to pay any per-page copy fees, retrieval fees, or any other expenses claimed by the subpoenaed party. In serving subpoenas for records upon health care providers, some Illinois attorneys specifically cite the Clayton decision when the provider attempts to make the usual copy charges that are authorized by 735 ILCS 5/8-2001.
It is the opinion of this author that Clayton is a poorly-reasoned decision, and that it certainly represents a very poor public policy. A health care provider obviously spends the same time and incurs the same expense in copying records, whether responding to a signed authorization or to a subpoena. Still, there is no decision by any other division of the Appellate Court of Illinois that contradicts the First District in Clayton, which means that Clayton applies throughout the state of Illinois. The following points, however, are offered for consideration:
(1) The Appellate Court in Clayton very specifically based its decision on the Workers’ Compensation Act, and held that the Illinois Code of Civil Procedure does not apply to a workers’ compensation subpoena. 735 ILCS 5/8-2001 is found in the Illinois Code of Civil Procedure. Clayton applies only in workers’ compensation cases, and not to civil lawsuits.
(2) A health care provider determined to “play hardball” with an attorney who declines to pay reasonable copy charges could consider the alternative of declining to send copies and instead complying literally with the subpoena by appearing at the time and location designated in the subpoena, with original records in hand. Unfortunately, this alternative could prove to be very time-consuming, and not cost-effective!
3. Responding To Discovery Requests
This section applies to parties in civil litigation, who are required to respond to written discovery requests. Such requests frequently require the production of medical records. Illinois Supreme Court Rule 214 provides in pertinent part as follows:
Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents, objects or tangible things...or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents, objects, tangible things...is relevant to the subject matter of the action. The request shall specify a reasonable time, which shall not be less than 28 days except by agreement or by order of court, and the place and manner of making the inspection and performing the related acts... Of course, parties to litigation will generally be represented by counsel, and an attorney has the opportunity to make appropriate objections to requests for production of medical records.
The most common categories of objections would be that the requested records are not “relevant to the subject matter of the action (Illinois Supreme Court Rules 201(b)(1) and 214), or that the request for records entails “unreasonable annoyance, expense, embarrassment, disadvantage or oppression.” (Illinois Supreme Court Rule 201(c)(1)).
In a civil action for personal injuries, the traditional view is that a Plaintiff has placed his or her physical and medical condition in issue, and has thereby waived the right to claim confidentiality with respect to his or her relevant medical records. Objections to requests for medical records of a Plaintiff certainly can be made, and are made, however, if a request is made for records that are very remote in time, or that pertain to a medical condition that is completely unrelated to the injuries claimed by the Plaintiff in the litigation. Ultimately, the Court must rule upon objections to written discovery requests that the attorneys cannot resolve among themselves, recognizing that Illinois law favors “full disclosure regarding any matter relevant to the subject matter involved in the pending action” in discovery proceedings. (Illinois Supreme Court Rule 201(b)(1)). Under this view, a Defendant in a civil case is not required to produce records concerning his own medical care and treatment, unless that Defendant has filed a counterclaim or Affirmative Defense that raises an issue concerning his own physical or medical condition.
The “traditional” view is that a Defendant in a civil lawsuit does not waive physicianpatient confidentiality unless that Defendant has affirmatively placed his own condition in issue. See Kraima v. Ausman, 365 Ill. App. 3d 530, 850 N.E. 2d 840 (1st Dist. 2006). Under this view, a Defendant in a civil case is not required to produce records concerning his own medical care and treatment, unless that Defendant has filed a Counterclaim or Affirmative Defense that raises an issue concerning his own physical or medical condition.
On the other hand, in recent years, “standard interrogatories” have been propounded under the authority of the Illinois Supreme Court, pursuant to Rule 213(j). These include standard “Motor Vehicle Interrogatories to Defendants,” which contain the following Interrogatories:
20. Do you have any medical and/or physical condition which required a physician’s report and/or letter of approval in order to drive? If so, state the nature of the medical and/or physical condition, the physician or other health care professional who issued the letter and/or report, and the names and addresses of any physician or other health care professional who treated you for this condition prior to the occurrence.
21. State the name and address of any physician, ophthalmologist, optician or other health care professional who performed any eye examination of you within the last five years and the dates of each such examination.
22. State the name and address of any physician or other health care professional who examined and/or treated you within the last 10 years and the reason for such examination and/or treatment.
Standard Interrogatory No. 20 is not entirely inconsistent with the “traditional” view, since
Interrogatory No. 20, if applicable, requires information about a “medical and/or physical condition” that would already be a matter of public record in connection with issuance of the Defendant’s driver’s license by the Illinois Secretary of State. The same cannot be said, however, of “Standard” Interrogatories No. 21 and 22 which require the disclosure of medical information pertaining to the Defendant that would otherwise be considered completely confidential. In representing Defendants in motor vehicle cases, this author adheres to the “traditional view,” and usually objects to “Standard” Interrogatories 21 and 22, and would welcome the opportunity to challenge the validity of those Interrogatories on appeal.
4. Criminal Court Issues
The traditional concept of physician-patient privilege and confidentiality is codified under Illinois law in 735 ILCS 5/8-802. That statute, however, also contains three significant exceptions to the physician-patient confidentiality in the criminal-law context, as will be described below.
(a) Homicide
Under 735 ILCS 5/8-802(1), indicates that physician-patient confidentiality does not apply “in trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide...” On its face, this statutory exception is not limited to a physician for the criminal Defendant. Accordingly, this exception would also likely apply to medical information concerning the homicide victim, although as a practical matter, it is less likely that the personal representative or next-of-kin would seek to assert physician-patient confidentiality prosecution.
This homicide exception, however has been held not to apply to statements made by a murder defendant to a non-testifying psychiatrist in the course of a fitness and sanity examination, when the defense did not raise a insanity defense and the psychiatrist was never identified as a witness by the defense. See People v. Sutton, 316 Ill.App.3d 874 739 N.E.2d 543 (1st Dist. 2000).
A related, and presumably little-used exception also appears in 735 ILCS 5/8-802(6), which provides that the privilege does not apply “in any criminal action where the charge is either first degree murder by abortion, attempted abortion or abortion.”
(b) Reports Under the Abused and Neglected Child Reporting Act.
735 ILCS 5/8-802 (7) provides an exception to physician-patient confidentiality in actions, civil or criminal arising from the filing of a report in compliance with the Abused and Neglected Child Reporting Act, 325 ILCS 5/1, et seq. The statutory definitions of “abused child” and “neglected child” appear in 325 ILCS 5/3. Persons required to make reports to the Department of Children and Family Services when there is a “reasonable cause to believe” a child known to them in their professional or official capacity may be an abused or neglected child are listed in 325 ILCS 5/4. The required “reporters” include numerous categories of health care professionals, coroners, funeral home personnel, crisis line or hot line personnel, school personnel, social workers, domestic violence program personnel, nursery school and daycare personnel, registered psychologists and their employees, etc. 325 ILCS 5/4 reinforces the point that the physician-patient privilege does not apply under the Abused and Neglected Child Reporting Act with the following sentence:
The privileged quality of communication between any professional person required to report and his patient or client shall not apply to situations involving abused and neglected children and shall not constitute grounds for failure to report as required by this Act.
(c) Results of Blood Alcohol Tests Under 5/8-802(9)and (10)
Physician-patient confidentiality does not apply in prosecutions where written results of blood alcohol tests are admissible pursuant to the Illinois Vehicle Code, 625 ILCS 5/11-501.4 or under the Boat Registration and Safety Act, 625 ILCS 45/5-16a.
The Motor Vehicle Code, 625 ILCS 5/11-501.4 applies to chemical tests of blood for alcohol or other drugs conducted upon persons receiving medical treatment in a hospital emergency room. Such test results are admissible as evidence as a business record exception to the hearsay rule in prosecutions for driving under the influence or prosecutions for reckless homicide, if the following conditions are met:
(1) The chemical tests performed upon an individual’s blood were ordered in the regular course of providing emergency medical treatment, and not at the request of law enforcement authorities.
(2) The chemical tests performed upon an individual’s blood were performed by the laboratory routinely used by the hospital.
The points that the results of blood testing are not confidential in DUI or reckless homicide prosecutions, and that no person shall be liable for civil damages for disclosure or reporting of such information, are reinforced by the provisions of 625 ILCS 5/11-501.4(b) and 625 ILCS 5/11-501.4-1(b). Similar provision regarding the use of the results of chemical testing of blood in prosecutions for operating a watercraft under the influence of alcohol and other drugs appear in 625 ILCS 45/5-16a.
(d) Statements Made to Rape Crisis Personnel
735 ILCS 5/8-802.1 provides for the confidentiality of any communications between a rape victim and a rape crisis counselor in course of providing information, counseling and advocacy, without the written consent of the victim or a representative of the victim. A rape crisis counselor or rape crisis organization has immunity from any liability for disclosure of confidential information without the consent of a rape victim “if failure to disclose is likely to result in a clear, imminent risk of serious physical injury or death to the victim or another person.” 735 ILCS 5/8-802.1(d) and (e).
B. Confidentiality Considerations under the FMLA and ADA
1. Family and Medical Leave Act
In general, the Family and Medical Leave Act (29 U.S.C. §2601, et seq.), applies to private employers with fifty (50) or more employees. 29 U.S.C. §2611 (2)(B)(ii). An eligible employee may be entitled to FMLA leave because of a “serious health condition that makes the employee unable to perform the functions of the position of such employee” or “[i]n order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C. §2612 (a)(1)(C) and (D). A “serious health condition” means an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. 29 U.S.C. §2611(11).
What may an employer require of an employee in order to prove the existence of a “serious health condition” of the employee or family member? The FMLA contains the following provisions concerning certification of a “serious health condition” as follows:
§ 2613. Certification
(a) In general
An employer may require that a request for leave under subparagraph (C) or (D) of paragraph (1) or paragraph (3) of section 2612(a) of this title be supported by a certification issued by the health care provider of the eligible employee or of the son, daughter, spouse, or parent of the employee, or of the next of kin of an individual in the case of leave taken under such paragraph (3), as appropriate. The employee shall provide, in a timely manner, a copy of such certification to the employer.
(b) Sufficient certification
Certification provided under subsection (a) shall be sufficient if it states–
(1) the date on which the serious health condition commenced;
(2) the probable duration of the condition;
(3) the appropriate medical facts within the knowledge of the health care provider regarding the condition;
(4)(A) for purposes of leave under section 2612(a)(1)(C) of this title, a statement that the eligible employee is needed to care for the son, daughter, spouse, or parent and an estimate of the amount of time that such employee is needed to care for the son, daughter, spouse, or parent; and
(B) for purposes of leave under section 2612(a)(1)(D) of this title, a statement that the employee is unable to perform the functions of the position of the employee;
(5) in the case of certification for intermittent leave, or leave on a reduced leave schedule, for planned medical treatment, the dates on which such treatment is expected to be given and the duration of such treatment;
(6) in the case of certification for intermittent leave, or leave on a reduced leave schedule, under section
2612(a)(1)(D) of this title, a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule, and the expected duration of the intermittent leave or reduced leave schedule; and
(7) in the case of certification for intermittent leave, or leave on a reduced leave schedule, under section
2612(a)(1)(C) of this title, a statement that the employee's intermittent leave or leave on a reduced leave schedule is necessary for the care of the son, daughter, parent, or spouse who has a serious health condition, or will assist in their recovery, and the expected duration and schedule of the intermittent leave or reduced leave schedule.
(c) Second opinion
(1) In general
In any case in which the employer has reason to doubt the validity of the certification provided under subsection
(a) of this section for leave under subparagraph (C) or
(D) of section 2612(a)(1) of this title, the employer may require, at the expense of the employer, that the eligible employee obtain the opinion of a second health care provider designated or approved by the employer concerning any information certified under subsection
(b) of this section for such leave.
(2) Limitation
A health care provider designated or approved under paragraph (1) shall not be employed on a regular basis by the employer.
(d) Resolution of conflicting opinions
(1) In general
In any case in which the second opinion described in subsection (c) of this section differs from the opinion in the original certification provided under subsection (a) of this section, the employer may require, at the expense of the employer, that the employee obtain the opinion of a third health care provider designated or approved jointly by the employer and the employee concerning the information certified under subsection (b) of this section.
(2) Finality
The opinion of the third health care provider concerning the information certified under subsection (b) of this section shall be considered to be final and shall be binding on the employer and the employee.
(e) Subsequent recertification
The employer may require that the eligible employee obtain subsequent recertification’s on a reasonable basis.
(f) Certification related to active duty or call to active duty
An employer may require that a request for leave under section 2612(a)(1)(E) of this title be supported by a certification issued at such time and in such manner as the Secretary may be regulation prescribe. If the Secretary issues a regulation requiring such certification, the employee shall provide, in a timely manner, a copy of such certification to the employer.
An employer must give notice of a requirement for medical certification under the FMLA each time a certification is required. At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification. 29 CFR 825.305. Whenever the employer finds a certification incomplete, the employer must advise the employee, and provide him or her a reasonable opportunity to cure any such deficiency.
When the leave is foreseeable, and at least thirty (30) days notice has been provided, the employee should provide the medical certification before the leave begins. When this is not possible, the employee must provide the requested certification to the employer within the time frame requested by the employer, which must allow at least fifteen (15) calendar days after the employer’s request. 29 CFR 825.305.
The Department of Labor has developed optional Form WH-380 for use in obtaining medical certification, including second and third opinions. 29 CFR 825.306 contains the following descriptions of Form WH-380, and its use:
(b) Form WH-380, as revised, or another form containing the same basic information, may be used by the employer; however, no additional information may be required. In all instances the information on the form must relate only to the serious health condition for which the current need for leave exists. The form identifies the health care provider and type of medical practice (including pertinent specialization, if any), makes maximum use of checklist entries for ease in completing the form, and contains required entries for:
(1) A certification as to which part of the definition of ``serious health condition'' (see Sec. 825.114), if any, applies to the patient's condition, and the medical facts which support the certification, including a brief statement as to how the medical facts meet the criteria of the definition.
(2)(i) The approximate date the serious health condition commenced, and its probable duration, including the probable duration of the patient's present incapacity (defined to mean inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom) if different.
(ii) Whether it will be necessary for the employee to take leave intermittently or to work on a reduced leave schedule basis (i.e., part- time) as a result of the serious health condition (see Sec. 825.117 and Sec. 825.203), and if so, the probable duration of such schedule.
(iii) If the condition is pregnancy or a chronic condition within the meaning of Sec. 825.114(a)(2)(iii), whether the patient is presently incapacitated and the likely duration and frequency of episodes of incapacity.
(3)(i)(A) If additional treatments will be required for the condition, an estimate of the probable number of such treatments.
(B) If the patient's incapacity will be intermittent, or will require a reduced leave schedule, an estimate of the probable number and interval between such treatments, actual or estimated dates of treatment if known, and period required for recovery if any.
(ii) If any of the treatments referred to in subparagraph (i) will be provided by another provider of health services (e.g., physical therapist), the nature of the treatments.
(iii) If a regimen of continuing treatment by the patient is required under the supervision of the health care provider, a general description of the regimen (see Sec. 825.114(b)).
(4) If medical leave is required for the employee's absence from work because of the employee's own condition (including absences due to pregnancy or a chronic condition), whether the employee:
(i) Is unable to perform work of any kind;
(ii) Is unable to perform any one or more of the essential functions of the employee's position, including a statement of the essential functions the employee is unable to perform (see Sec. 825.115), based on either information provided on a statement from the employer of the essential functions of the position or, if not provided, discussion with the employee about the employee's job functions; or
(iii) Must be absent from work for treatment.
(5)(i) If leave is required to care for a family member of the employee with a serious health condition, whether the patient requires assistance for basic medical or personal needs or safety, or for transportation; or if not, whether the employee's presence to provide psychological comfort would be beneficial to the patient or assist in the patient's recovery. The employee is required to indicate on the form the care he or she will provide and an estimate of the time period.
(ii) If the employee's family member will need care only intermittently or on a reduced leave schedule basis (i.e., part-time), the probable duration of the need. [Emphasis added.]
If an employee submits a complete certification signed by the health care provider, the employer may not request additional information from the employee’s health care provider. However, a health care provider representing the employer may contact the employee’s health care provider, with the employee’s permission, for purposes of clarification and authenticity of the medical certification. 29 CFR 825.307(a).
The employer is required to provide the employee with a copy of any “second” and “third” medical opinions, where applicable upon request by the employee. Requested copies are to be provided within five business days, unless there are extenuating circumstances. 29 CFR 825.307(d).
Under circumstances specified in 29 U.S.C. §2614(a)(4), an employer may request certification that the employee is able to resume work after an absence authorized by the FMLA from the health care provider of the employee.
29 U.S.C. §§2615 and 2617 make it unlawful for any employer to interfere with, restrain, or deny the right to exercise or attempt to exercise any right provided by the FMLA, and create a civil cause of action for such violations.
2. Americans With Disabilities Act
The Americans with Disabilities Act (ADA) (42 U.S.C. §12101, et seq.) applies to most employers in the United States of medium size or larger (42 U.S.C. §12111(5)). In general, under the ADA, an employer may make preemployment inquiries into the ability of an applicant to perform job-related functions, but may not conduct a medical examination or make inquiries of a job applicant as to whether the applicant is an individual with a disability, or as to the nature or severity of the disability. The inquiries and examinations that are permissible under the ADA, and the requirements for preserving the confidentiality of medical information on an employee under the ADA are summarized in 29 CFR 1630.14, which reads as follows:
Sec. 1630.14 Medical examinations and inquiries specifically permitted.
(a) Acceptable pre-employment inquiry. A covered entity may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions.
(b) Employment entrance examination. A covered entity may require a medical examination (and/or inquiry) after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, and may condition an offer of employment on the results of such examination (and/or inquiry), if all entering employees in the same job category are subjected to such an examination (and/or inquiry) regardless of disability.
(1) Information obtained under paragraph (b) of this section regarding the medical condition or history of the applicant shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
(ii) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
(iii) Government officials investigating compliance with this part shall be provided relevant information on request.
(2) The results of such examination shall not be used for any purpose inconsistent with this part.
(3) Medical examinations conducted in accordance with this section do not have to be job-related and consistent with business necessity.
However, if certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions cannot be accomplished with reasonable accommodation as required in this part. (See Sec. 1630.15(b) Defenses to charges of discriminatory application of selection criteria.)
(c) Examination of employees. A covered entity may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. A covered entity may make inquiries into the ability of an employee to perform job-related functions.
(1) Information obtained under paragraph (c) of this section regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
(ii) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
(iii) Government officials investigating compliance with this part shall be provided relevant information on request.
(2) Information obtained under paragraph (c) of this section regarding the medical condition or history of any employee shall not be used for any purpose inconsistent with this part.
(d) Other acceptable examinations and inquiries. A covered entity may conduct voluntary medical examinations and activities, including voluntary medical histories, which are part of an employee health program available to employees at the work site.
(1) Information obtained under paragraph (d) of this section regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
(ii) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
(iii) Government officials investigating compliance with this part shall be provided relevant information on request.
(2) Information obtained under paragraph (d) of this section regarding the medical condition or history of any employee shall not be used for any purpose inconsistent with this part.
42 U.S.C. §§12132 and 12133 create a civil cause of action for employees claiming discrimination by reason of disability. Of course, failure to adhere to the requirements of the ADA regarding inquiries, examinations, and the keeping of records pertaining to the medical condition of employees with a disability can provide a basis for a claim of discrimination under the ADA.