The Center for Medicare Advocacy, Inc., had received a letter dated September 22, 2000, setting forth its view of the applicability of the Privacy Act of 1974 to its administrative appeals procedures for medicare managed care claims. The letter addresses the circumstance of attorney access to the medical records of clients whose cases are pending review by the independent review entity (IRE), the Center for health care Disputes Resolution (CHDR), with which HCFA has contracted to provide independent review of reconsideration-decisions of Medicare+Choice Organizations.
Attorney advocates have complained that HCFA does not recognize their right to obtain medical records from CHDR unless the attorney=s request is accompanied by a notarized statement of authorization from the Medicare beneficiary. Advocates have taken the view that under the Social Security regulations, adopted by HCFA, access to such records requires only a statement from the attorney that he or she represents the Medicare beneficiary. See 42 C.F.R. '422.561 and its references to 20 C.F.R. '404 subpart R, particularly 20 C.F.R. ''404.1707- 1708. Social Security regulations provide that attorney representative does not have to sign a notice of appointment. 20 C.F.R. '404.1707(b). Moreover, 20 C.F.R.'404.1708(a)(1) provides that a representative has the same access to information about a claim as the beneficiary.
The HCFA position, as stated in its September 22, 2000 letter, is that the Privacy Act of 1974 (5 U.S.C. '552a, subsection (d)(5)) requires attorneys to submit a notarized statement of authorization in order to obtain the medical records concerning all CHDR reviews, except for those involving expedited reconsideration. This represents a clarification of the HCFA position. Prior to this letter, advocates have no written statement of the HCFA position.
While advocates do not agree with HCFA=s legal assessment that attorneys have to submit notarized statements of authorization to obtain medical records in cases before CHDR, they do appreciate the clarification. It helps to focus future advocacy on this point. Similarly, beneficiary advocacy is helped by the HCFA clarification that in expedited reconsideration review circumstances, the notarized statement is not necessary. For this proposition, HCFA cites the Acompelling circumstances@ provision of the Privacy Act, 5 U.S.C. '552a(b)(8). Moreover, the HCFA letter states that it will instruct CHDR to begin immediately to follow the dictates of the letter with respect to access to medical records in expedited reconsideration review circumstances. (The rules for expedited reconsideration review are found at 42 C.F.R. '422.584.)
The genesis of the HCFA letter is correspondence with HCFA on the problem of access to the attorneys record, including a memorandum prepared by the Center challenging the HCFA assessment that the Privacy Act requires notarized statements of authorization when attorneys are involved. The Center argued that Privacy Act regulations at 45 C.F.R. '5b.2(e)(5) are applicable to administrative appeals proceedings such as the CHDR process; that the Privacy Act creates an exception for such proceedings, and that the notarized statement of authorization is not needed.
HCFA has responded to this argument by saying that the Privacy Act exception applies to formal administrative proceedings and thus not to the CHDR review process. The Center will seek clarification from HCFA that it is its position that the CHDR review process is not a formal administrative appeals process.
The Center is interested in hearing from advocates about their on-going problems of attorneys obtaining access to client records, including the expedited review process. Advocates should contact Alfred Chiplin or Vicki Gottlich in the DC office, or Sally Hart in the Tucson office.
A copy of the HCFA letter is available from Davie Ryan in the Center=s DC office. Ask for the HCFA letter dated September 22, 2000 and information packet on access to CHDR records.
Copyright © Center for Medicare Advocacy, Inc. 01/08/2010