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How private are "private" medical records?
October 20, 2006 4:27 PM   Subscribe

How much of my medical history is available to prospective employers/government institutions, and are there any questions regarding medical history or treatment that I am not legally obligated to answer?

I recently received inpatient psychiatric care in the state of California under a 5150 (mandatory 72hr hold), as well as during my teenage years in Illinois. Notwithstanding any potential ethical considerations, if I choose not to reveal this information in an employment or government service application, is there any way that it can be accessed without my permission/authorization? While the medical records themselves may be protected under patient's privacy laws, would the ER admissions/insurance claims be accessible? Could the information be obtained through my financial records? And if I do choose to answer "no" to any of the questions, are there potential legal repurcussions to doing so?
(private feedback can be sent to patients.rights at gmail.com)
posted by anonymous to Law & Government (7 answers total)
 
During the hiring process, it's illegal for them ask about such things. (Once you're an employee it's different. Then they need to know.)
posted by Steven C. Den Beste at 5:00 PM on October 20, 2006


They're pretty private. See HIPPA.
posted by fvox13 at 5:01 PM on October 20, 2006


The medical records themselves are protected by HIPPA. Re employer inquiries, the rules in California are as follows:

Application stage. In California, under the FEHA, it's illegal to ask about medical/psychiatric/psychological history during the hiring process. (This is also generally true in all states under the ADA.) This rule does not prohibit conversations initiated *by* the applicant (e.g. "I really think a would be a great peer counselor because of my experiences as a patient in the mental health system") or non-medical questions that might be hard to answer for some people with certain medical histories such as "what's up with this gap in your resume?"

Post job offer. In California only (NOT the rule under the ADA), after a job offer is give, but before the person starts working, any medical/psychiatric/psychological inquiry must be "job related and consistent with business necessity." (Under the ADA, for most/all states besides California, virtually any post-offer, pre-employment inquiry may be made, so long as all incoming employees are asked the same questions.)

On the job. Once the person starts working in California, medical/psychiatric/psychological inquiries must be "job related and consistent with business necessity." This usually arises when the person requests reasonable accommodation, or if there is some "objective evidence" that would lead the reasonable employer to believe that there is a medical, etc. reason that the employee cannot safely perform the job.
posted by ClaudiaCenter at 7:12 PM on October 20, 2006


it's illegal to ask about medical/psychiatric/psychological history during the hiring process

..unless it's relevant to the performance of job duties. This little loophole lets employers get away with quite a lot.
posted by ikkyu2 at 1:11 PM on October 21, 2006


Regarding financial info, this link has info saying that medical information can not be included on a credit report without your permission.

I also remember reading somewhere that if any of the creditors on your report are medical facilities that reveal particular information (i.e., "Cancer Center"), that name will not show up on your report and instead it will say just "medical facility" or something like that.

The only time I can think of when I was required to give medical information to an employer was when it was a small employer applying for group medical coverage for the first time, and every employee had to fill out a form with their medical history for X years. I was hesitant to hand over this information, but luckily the HR person was accomodating and let me hand him the filled-out form, watch as he faxed it to the insurance co, and then hand it right back to me without the form ever being out of my sight (so my employer never read it, just the insurance co). I'm not sure if every HR dept. would be that helpful.
posted by clarissajoy at 3:14 PM on October 21, 2006


or government service application

Whatever forms you are asked to fill out for Federal government work will include the possible penalties. From an SF85P I had to fill out recently before I worked on a project:

Penalties for Inaccurate or False Statements The U.S. Criminal Code (title 18, section 1001) provides that knowingly falsifying or concealing a material fact is a felony which may result in fines of up to $10,000, and/or 5 years imprisonment, or both. In addition, Federal agencies generally fire, do not grant a security clearance, or disqualify individuals who have materially and deliberately falsified these forms, and this remains a part of the permanent record for future placements. Because the position for which you are being considered is one of public trust or is sensitive, your trustworthiness is a very important consideration in deciding your suitability for placement or retention in the position.

That said, the 85P asked no questions re: mental health or alcohol issues. The 85PS supplemental (which is only presented after an offer has been made) had questions that might be pertinent:

In the last 7 years, have you consulted with a mental health professional (psychiatrist, psychologist, counselor, etc.) or have you consulted with another health care provider about a mental health related condition? You do not have to answer "Yes" if you were only involved in marital, grief, or family counseling not related to violence by you.

The Declaration for Federal Employment (OMB No. 3206-0182) did have some sections, but they were prefaced with this:

For all questions, provide all additional requested information under item 16 or on attached sheets. The circumstances of each event you list will be considered. However, in most cases you can still be considered for Federal jobs.

For questions 9,10, and 11, your answers should include convictions resulting from a plea of nolo contendere (no contest), but omit (1) traffic fines of $300 or less, (2) any violation of law committed before your 16th birthday, (3) any violation of law committed before your 18th birthday if finally decided in juvenile court or under a Youth Offender law, (4) any conviction set aside under the Federal Youth Corrections Act or similar state law, and (5) any conviction for which the record was expunged under Federal or state law.


So your age in IL may be pertinent.

For private employment there's much less likely to be financial or legal penalties for withholding information. Many companies have a policy of immediate termination upon discovering that a person has lied on any part of their application, regardless of how much time has gone by, however at that point you have an opportunity to confront them over illegal termination. At the application stage they can discriminate against you while claiming that the information you were asked had nothing to do with it.

My point there being, if you are faced with what you believe may be an illegal question my actions in your place would be to lie rather than confront them over it, then consider if you really want to work someplace that would ask you that question and hire you or not based on your answer.
posted by phearlez at 11:08 AM on October 22, 2006



..unless it's relevant to the performance of job duties. This little loophole


Not quite. Under the ADA, any medical inquiries (e.g. making sure a firefighter or flight attendant does not have a medical condition incompatible with firefighting or flying) must be made post-job-offer (pre-employment).

The employer can ask about performing job duties, and the answers might reveal information about disability. But that is different from asking medical questions.

There's been another AskMe recently on this question.
posted by ClaudiaCenter at 9:13 PM on October 22, 2006


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