|
March 17, 2004
VIA FACSIMILE
Gwen Lourie, Esq.
Proskauer Rose LLP
1585 Broadway
New York, NY 10036-8299
Re: League-ATPAM Welfare Fund (“Fund”) - HIPAA Privacy Rule
Dear Gwen:
I am writing on behalf of the Union Trustees concerning the issue of
personal health information (“PHI”) disclosure to the Fund Trustees in
connection with the payment of self-insured claims by the Fund office.
The payment of self-insured benefits involves reimbursing eligible
participants for the services of dentists, opticians, psychiatrists,
psychologists and other personal therapists, among other things.
This issue has arisen as a result of an Employer Trustee Slaughter’s
request to review the supporting documentation for self-insured claims
submitted by participants for reimbursement for the purposes of monitoring
the Fund office’s claims processing activities. As we have
discussed, the documentation for these claims contains PHI to which the
Trustees may have access in connection with the payment of claims in the
ordinary course under the Privacy Rule, without specific participant
authorization. Nonetheless, the Union Trustees, in an exercise of
caution and based upon their view that the Privacy Rule sets forth minimum
standards of privacy which may be expanded upon by a covered entity, will
not agree to have the Fund office disclose the PHI relating to
self-insured claims to any Employer Trustee. The invoices supporting
these claims may, in certain cases, contain sensitive information which
directly or by inference identifies the claimant as being HIV positive or
suffering from some serious ailment, the unauthorized disclosure of which
could be devastating to the claimant’s career.
As a practical matter, the damage which could result from PHI disclosure
to an employer trustee of a multiemployer welfare fund involves the
subsequent unauthorized disclosure/improper use of the same by that
trustee and the employers he or she represents in connection with
employment-related decisions or actions. While your point that the
HIPAA Privacy Rule makes no distinction between employer and union
trustees in the multiemployer context is duly noted, in the context of
this Fund and the historical relations between its Employer and Union
Trustees, the Union Trustees choose to adopt a more expansive reading of
the Privacy Rule to protect the confidentiality of the PHI of the Fund’s
participants. They will not, therefore, agree under any
circumstances to permit any Employer Trustee to have access to
participants’ PHI.
The Union Trustees are therefore proposing that the Privacy Rule
amendments to be made to the Fund’s plan document provide that only those
Fund office personnel involved in the actual payment of self-insured
claims and the Union Trustee with necessary access to eligibility data
(currently Gordon Forbes in his capacity as ATPAM’s Secretary-Treasurer)
have access to participants’ PHI.
Please feel free to call me if you wish to discuss.
Very truly yours,
Deborah A. Hulbert
PRYOR CASHMAN SHERMAN & FLYNN LLP
cc: Board of Trustees,
Gerry Parnell,
Vincent F. Pitta, Esq.,
John Schuch, Esq. |
