Hardship Distributions and HIPAA

[Guest blaum8]

I'm looking at a hardship request based on dire medical need and am concerned that if I tell the PA to obtain evidence of the need, it would contain personal medical information protected under HIPAA. Has anyone set up a structure to deal with these types of requests? I haven't been able to find much on the interplay between the hardship distribution rules and HIPAA privacy requirements. Anyone else encountered this before, and if so, can you point me in the right direction . . .

[JanetM]

All we require is copy of EOB that shows amounts not paid by insurance. You can't take a hardship for future medical bills - only those already incurred. What PHI would be on EOB? You don't need to have doctors note or hospital charts.

[401 Chaos]

I have not encountered this before and have never researched the issue but my initial thought is that the HIPAA Privacy Rule would not apply here and the information would not constitute protected health information if the information is received by the employer / 401(k) Plan directly from the participant or source other than a health plan. HHS does not have authority to regulate employers / plan sponsors directly so they are limited to indirectly regulating the flow of PHI from health plans. The pension plan should not constitute a "health plan" for HIPAA Privacy purposes.

While HIPAA may not apply, other privacy rules may thus the employer / plan sponsor should treat such information confidentially even if HIPAA does not require it. I also wonder if the Plan could not obtain sufficient evidence of the medical hardship without getting detailed medical information. I am interested in others' thoughts.

[ccassetty]

JanetM

An employee can take a hardship for anticipated medical expenses - last part of 1.401(k)-1(d)(2)(iv)(A)(1) .....or necessary for these persons to obtain medical care described in section 213(d).