Fraser v. Avaya Civil Action No. 10-cv-00800-RPM.

Another HIPAA case. In Fraser v. Avaya, the Court seems to opine on the matter of whether the evaluee can be required to sign away his/her rights in a forensic matter.

If you have read some of my articles (www.fl-forensic.com), you will know that some FMHPs refuse to release records (just had another attorney consult me on that today, in fact!). One of the justifications for doing so is an assertion that they can require the evaluee to sign a form stating that they have no right to access their records. 

In this case, the employer required the evaluee / disability-applicant to waive confidentiality rights (permitting disclosure to persons who had no right to the records), denying benefits when the employee refused to sign.

Among other complaints, the employee alleged violation of HIPAA. In it's opinion, the Court seemed to agree, eventually denying Avaya's motion for summary judgment and remanding for evidentiary hearing(s).

Here's a summary of the opinion:

Fraser applied for disability

 Multiple doctors, including an IME, diagnosed him as disabled

Case manager required him to sign a release form authorizing access of the medical records to “any affiliate or representative of Avaya or persons performing business or legal services on its behalf, ” even though the information would be “used only to evaluate whether or not my medical condition satisfies the requirements of federal, state or local FMLA and disability laws, state Workers’ Compensation and/or Avaya’s welfare benefit plans”.

He refused to sign and Avaya denied his claim.

The Court said “an employee’s application for disability benefits provides a legitimate business reason for an employer to obtain information about the medical diagnosis supporting the application” but that “does not justify requiring the applicant to sign a medical authorization form that would authorize disclosure of confidential medical information to more persons than those necessarily involved in the evaluation of the application”.

The Court also said “Reasonable jurors may conclude that the scope of disclosure stated in Avaya’s preprinted form was unnecessarily broad and that the plaintiff had a reasonable concern about whether his right to medical privacy would be protected”

http://scholar.google.com/scholar?scidkt=4791583976784800839&as_sdt=2&hl=en