A recent Commonwealth Court of Pennsylvania decision addressed the sufficiency of a medical provider’s compliance with the statutory requirement to timely furnish medical records to the utilization review organization.
In Jimmie Shaw vs. Workers’ Compensation Appeal Board (Melgrath Gasket Co.), 2010 Pa. Commw. LEXIS 197 (April 2010), it appears that a common sense application of the law has prevailed. The facts presented do not reflect a significant dispute of facts or law. One can look at this as a controversy regarding interpretation of the law, as to which party behaved appropriately. The transmittal or exchange of medical records is a daily occurrence in one’s worker compensation practice. This case bears our further review and decision.
Facts of the Case
The facts are not disputed. The employer filed a Utilization Review Request (URR) for “any and all prescriptions for medications prescribed to claimant.” The Bureau of Workers’ Compensation issued a Notice of Assignment of the URR to a Utilization Review Organization (URO). That same day, November 27, 2007, the URO sent a letter to the medical provider under review, requesting that he “forward all of the true and complete records for the entire course of treatment rendered to claimant for the work-related injury to the URO office…within thirty days of the date of this letter.” “We are requesting all medical records in your possession from December 5, 1988 and onward.” The letter also indicated that the medical provider must also include the enclosed provider verification form, verifying to the best of his knowledge that the medical records provided constitute the true and complete medical chart as it relates to the employee’s work injury. [As required by Regulation 127.459 (c)].
Additionally, the letter informed the medical provider, Dr. Bailer, that if he “fails to mail the records to the URO within 30 days of the date of the request of records, the URO shall render the determination that the treatment under review was not reasonable or necessary.” The URO will consider the records as timely if the envelope containing the records contains a valid USPS postmark, on or before December 28, 2007. (2010 Pa. Commw. LEXIS 197, *3).
On December 24, 2007, Dr. Bailer mailed a CD-ROM, containing claimant’s medical records to the URO. In accord with his past practice and procedure, Dr. Bailer encrypted the records to protect the confidentiality of the claimant’s medical records, thereby requiring a password for the records to be reviewed. It was undisputed that Dr. Bailer did not send the password with the CD, in order to preserve the security of the information. (2010 Pa. Commw. LEXIS 197, *3).
The URO received the medical records from Dr. Bailer on December 27, 2007 (one day before the deadline). The URO representative could not read the information on the CD-ROM. In the reported facts, it is unclear as to whether or not the URO representatives realized that the CD Rom had been encrypted with a password. In any event, the URO telephoned two different office locations for Dr. Bailer and left a message advising that the CD-ROM could not be downloaded, and that he had one day to provide paper medical records. Other than the two phone calls on December 27, 2007, there were “no further attempts to review the records or contact Dr. Bailer” by the URO. On January 17, 2008, the URO issued a UR Determination holding that the health care provider under review was unreasonable and unnecessary, pursuant to 34 Pa. Code §127.464, as Dr. Bailer failed to supply the requested medical records.
Dr. Bailer testified that he received the initial correspondence regarding the UR Request. He explained that he copied claimant’s medical records to a CD-ROM encrypting it with a security password, consistent with his past practice. The records were made on December 24, 2007. He did not send the password with the CD, in order to preserve the security of this information.
Interestingly, Dr. Bailer testified that he did not hear from the URO, “until it communicated that it could not open the CD and that Dr. Bailer had one day to provide paper records to the URO. The URO never requested the password to the encrypted CD.” Apparently, Dr. Bailer initiated no further communications with the URO. This course of conduct seemed to be decisive of the outcome of this case.
Conclusions of the Court
The claimant filed a UR Petition to challenge the determination that Dr. Bailer had failed to comply with the requirements to timely furnish complete medical records. Interestingly, the workers’ compensation judge assigned credibility to Dr. Bailer’s explanations that he acted reasonably and consistently with his obligations to protect the privacy of claimant’s medical records. Oddly, the workers’ compensation judge found the URO’s conduct unreasonable as the URO, upon receipt of the CD “should have requested the password or sought further assistance in order to review the records.” The workers’ compensation judge found that the URO did not act reasonably or appropriately by telephoning the provider late in the day, mandating that the provider supply all of the medical records in paper form within 24 hours.
The opinion and order of the Commonwealth Court of Pennsylvania, authored by Dr. Judge Renée Cohn Jubelirer, affirmed the decision of the Pennsylvania Workers’ Compensation Appeal Board. The Appeal Board concluded that the medical provider should have made a reasonable effort to insure that the records contained on the CD were accessible to the URO. The provider failed to inform the URO that the CD was encrypted and password protected. The medical provider did not explain his failure to inform the URO that a password was required to open the CD or how the URO might go about obtaining the password. The provider’s position was not advanced by his deposition statement that “it was the URO’s obligation to find out how one opens it if one is inept at opening records.” (2010 Pa. Commw. LEXIS 197, *9).
The Commonwealth Court reviewed the statutory language at §306 (f.1) (6) of the Workers’ Compensation Act and the pertinent regulations thereunder. It was alleged that the provider did not comply with the regulations by submitting a signed verification form to the URO, however, that issue was not addressed based upon the disposition of the primary argument.
In balancing the interest of the parties, the Commonwealth Court agreed with the employer’s analysis that it was not disputed that Dr. Bailer sent a CD-ROM to the URO within 30 days of the date of the request; rather, the “real issue” is whether the medical provider complied with the statutory requirements where the contents of the CD-ROM were inaccessible due to an encrypted password, which was not disclosed to the URO. No one questioned the merits of encryption of the medical records for security purposes. However, as the Court noted, “Implicit in the regulation is the requirement for the provider to supply the medical records of a claimant in a useable format or mode that allows the URO to engage in the review process.” (2010 Pa. Commw. LEXIS 197, *15). Judge Cohn Jubelirer analogized the encrypted CD to the situation where an individual sends a blank CD or unreadable records. The failure to provide the URO with a password to the CD Rom rendered the records contained therein useless, because without access to the records, the URO could not perform a records review.
Dr. Bailer and all future medical providers received common sense advice from the Court, that Dr. Bailer who could have indicated in a note accompanying the CD-ROM that the file was encrypted for security purposes, and he would provide the password at a later time or more simply, he could have returned the telephone call of the URO representative. Instead, Dr. Bailer did nothing and this proved to be an unsuccessful strategy!
What Have We Learned?
What can we learn from the experience of this medical provider? Perhaps a measure of courtesy and a straightforward common sense approach will resolve a portion of the difficulties we encounter on a daily basis, within the worker compensation system. The transmittal of medical records should be an administrative task without the need to interpret or divine the intentions or thoughts of the provider. In my personal experience, upon my first encounter with an encrypted CD-ROM, I believed I had received a blank CD, as I could not open the CD and read the information. Much like the URO representative, I presumed the CD was unreadable. I felt somewhat foolish when the provider returned my telephone call and advised me that the CD was encrypted and provided a password. In my experience, I received a telephone call from the provider, which explained the reason for my ineptitude. It only took one telephone call to rectify the matter.
What have we learned? Let’s spend our time and resources on addressing the difficult questions arising within the workers’ compensation system. Let’s keep the simple tasks – simple. One cannot anticipate the law will provide a remedy if medical records, in any mode of transmission, were “unavailable” for review. The analogy to the blank CD or blank photocopy is persuasive when reviewing the conduct of these parties. It seems that an old legal doctrine remains relevant, that one who is seeking equity must come with clean hands. This English common law doctrine provides a measure of practical guidance when negotiating our modern statutes and regulations.
This blog was posted by Michael Sherman of Fried, Kane, Walters, Zuschlag and Grochmal.