Regulatory Comments
Submitted by the National Restaurant Association
To: U.S. Department of Health and Human Services
Date: March 26, 2001
Topic: Standards for Privacy of Individually Identifiable Health Information

March 26, 2001

U.S. Department of Health and Human Services
Attention: Privacy I, Room 801
Hubert H. Humphrey Building
200 Independence Avenue, SW
Washington, DC 20201

Dear Sir or Madam:

The National Restaurant Association founded in 1919 is the leading business association for the restaurant industry. The Association's 46,000 members represent more than 235,000 individual restaurant outlets across the nation. Our members operate quickservice restaurants, cafeterias and fullservice restaurants and provide foodservice for various institutions, such as hospitals, universities or military clubs. The National Restaurant Association is concerned with provisions of the Department of Health and Human Services "Standards for Privacy of Individually Identifiable Health Information," (65 FR 82462). Due to our interest to protect our industry's employees, we would like to enter the following comments for the record.

Section 164.512(l) of the final rule, Standard: disclosures for workers' compensation, allows a "covered entity" to disclose protected health information "as authorized by and to the extent necessary to comply with laws relating to workers' compensation…." As written, the provision is vague and can be misunderstood by health care professionals or covered entities under this rule. The verbiage indicates that a covered entity "may disclose protected health information…." Many health care professionals might in fact interpret this language to mean that they are not obligated to disclose employee patient information to the employee's employer or an employer's insurance company during a workers' compensation case investigation as required by workers' compensation laws.

Furthermore, the provision allows for disclosure "…to the extent necessary…", establishing an undefined term. The document does not define the term "extent necessary." Therefore, this creates a vague, unenforceable or unattainable standard for the health care provider to comply with. This reinforces the health care provider's incentive to release no information at all. If the intention of the term "extent necessary" is to mean minimum necessary, we also find the definition to be ambiguous.

During any workers' compensation case investigation, it is essential that an employer or its insurance company be privy to the medical-related information associated with the case. Without this information, an employer or its agent is unable to adequately assess the claim. Hence, the employee may not be adequately compensated for injuries resulting from service. We are obligated as the nation's largest private-sector employer to protect and represent our employees' best interests. Having full access to medical-related employee information is critical to our ability to meet these interests.

Provisions such as these, restricting a restaurant owner's access to claims-related medical information to the 'extent necessary,' have the potential to be extremely detrimental to the industry and its employees. The restaurant industry employs over 11 million people in this country and we take great pride in providing safe and healthy work environments for our employees. On a yearly basis, many restaurant companies complete safety or risk assessments of job duties in the establishment. A large part of the safety audit includes reviewing workers' compensation claims-related information including medical records associated with the cases. The resultant outcome of these assessments is safety programs designed to protect the industry's workforce. Without access to claims-related employee medical information, it will be almost impossible for the restaurant industry to develop sound safety programs.

Finally, we are concerned with section 164.512(l) and the meaning of the final phrase "without regard to fault." It is unclear to us what is meant by the term. Ambiguity must be removed from this section of the rule such that interpretation of this section is clear. Because of this and the reasons described above, we believe that this section must be modified to include unambiguous language that clearly establishes that covered entities must release workers' compensation claims-related information as required by law. The section should be modified to read "A covered entity shall, unless otherwise prohibited by applicable law, disclose protected health information as authorized to comply with laws relating to workers' compensation or other similar programs, established by law, that provide benefits for work-related injuries or illness."

We appreciate the opportunity to comment on this rule. Should you have any questions or comments, please feel free to call Steven Grover at (202) 973-5384.

Sincerely,
National Restaurant Association
Steven C. Anderson, President and Chief Executive Officer
Peter Kilgore, Senior VP and General Counsel
Lee Culpepper, Senior VP, Government Affairs and Public Policy
Steven F. Grover, R.E.H.S., VP, Health and Safety Regulatory Affairs