Confidentiality of Medical Records

[Guest Ken Segal]

Is it legal for a city government to require its non-union employees to submit their prescription slips for brand name drugs to a city employee for approval if the employee wants to have it covered for payment under the employer's prescription plan?

It sounds like a violation of confidentiality of employee medical records, but I'd like to be sure and need an answer by 12/4/99. Please let me know which laws it violates (i.e. HIPAA, ERISA, etc.). Thanks!

[jeanine]

Several thoughts spring to mind. ERISA does not apply to government plans--federal, state, political subdivisions or agencies thereof. Who is this employee? Is it the plan's admininstrator? Plan administrators make decisions like this all the time. What kind of discretion does the employee have in denying or approving prescriptions? If the employee is just checking off a list of approved medications, i.e. a formulary, I don't think you have a problem especially if 1) this is a term or condition of the plan, and 2) the employer can demonstrate there is a system in place which assures confidentiality.

[Guest Patricia Ibbs]

If the plan is self administered (that is administered by the government), it's fine to require this--impossible to administer a plan without proof of loss. If the employer okays all claims before sending them on to the claims administrator for payment, it's okay to require this. If there is no real "need to know," the employer may open itself up to a discrimination charge in the case of a claims denial. The law involved may be the Civil Rights Act or the Americans with Disabilities Act or the Age Discriminaiton in Employment Act or the Pregnancy Discrimination Act--that is, this practice is not specifically prohibited by any federal law (to my knowledge) but that doesn't preclude a lawsuit on the legal theory that the ONLY reason the employer wants this information is to discriminate.