Tuesday, July 4, 2017

Protecting Privacy in Florida

Two Florida WorkCompCentral stories recently caught my eye. In Under Settlement, Telemedicine Doc to Stop Treating Injured Workers, the recruiting of patients was described. And in Three New Comp Laws Signed by Governor and in Effect Saturday, the signing of House Bill (HB) 1107 was announced, one of a few 2017 bills affecting workers' compensation. 

The two stories may be interrelated. And a third recent Florida story might be intertwined also. In Compounds Billed at $1,000 or Greater will Require Preauthorization, we learned that specialized medication creams can be expensive. The story notes that some of these prescriptions can cost as much as $30,000 for a single tube of medication. 

The first story, Settlement, describes a "Florida doctor who recruited workers’ comp patients." He used public records to identify injured workers, recruited patients through direct solicitation, and provided them with "telemedicine visits" for their work injuries. And, the result of at least some of those visits was apparently a prescription for compound medication. 

In Florida, physicians treating injured workers' are primarily selected by the employer or carrier. An injured worker retains the right to seek emergency care from other providers in certain circumstances. The injured worker also has a statutory right to transfer care to a second provider (also usually selected by the employer/carrier). That opportunity is referred to as the "one time change." There are situations in which a request for one time change, not acted upon by the employer/carrier rapidly enough, may even afford the injured worker their choice of physician. 

The doctor in this Settlement story, Samuel J. Gerson, would recruit patients for telemedicine examinations and prescriptions. Some alleged that the method and phraseology used in the recruiting may have allowed some injured workers to believe that the services had been recommended by the insurance company or their worker's attorney, but that Dr. Gerson did not even inform either of them about his solicitation for patients. Some of the paperwork completed by the workers suggested or said that the worker was requesting to change physicians, selecting Dr. Gerson, which could be seen as the patient's "one time change." The insurance carriers were then billed for the telemedicine services. 

Dr. Gerson agreed in the settlement to stop treating workers' compensation patients in Florida. He will not even be affiliated "with anyone providing medical treatment for injured workers." He also agreed to "pay a $5,000 fine." In exchange for the doctor's agreement to these, the Florida Department of Financial Services "agreed to not refer" complaints against the doctor to the Florida Department of Health." That agency has authority over Dr. Gerson's Florida medical license. The WorkCompCentral article details Dr. Gerson's credentials and previous interaction with California's physician licensing authorities. 

Dr. Gerson, and a company with which he was affiliated, obtained the names and contact information for those injured workers from Florida public records. The second story, Three New Comp Laws Signed by Governor and in Effect Saturday, notes Governor Scott's June 26, 2017 signature on House Bill (HB) 1107. This enacts an "exemption from public records requirements for the personal identifying information of an injured or deceased employee." In other words, it removes vital information from the public domain and protects the privacy of injured workers.

The new law has a limited scope, protecting the records and information of injured workers that is "held by the Department of Financial Services pursuant to the Workers' Compensation Law." The Florida Division of Workers' Compensation is part of the Department of Financial Services. Therefore, this law will protect the information that is reported by employers when they file the notifications of injury under Chapter 440, such as the first report of injury, See Section 440.185(2), F.S., claim expenditure reports, and more. 

Information in Florida is generally available. The "Sunshine State," has a broad "Sunshine Law" protecting public access to volumes of state information. The 2017 law just signed exempts injured worker information from this broad policy of public access. And, this is not the first time that injured worker's information has been protected. From 1998 to 2003, Section 440.185(11) protected such information. It provided:
(11) Any information in a report of injury or illness filed pursuant to this section that would identify an ill or injured employee is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution."
However, the 1998 legislation included a "sunset provision" common in Florida law pursuant to "the Open Government Sunset Review Act of 1995." Following that constraint, the provisions of Section 440.185(11)(1998) were nullified by the passage of time. That law itself stated that the exemption from public disclosure would be "repealed on October 2, 2003, unless reviewed and saved from repeal through reenactment by the Legislature." 

Most laws that are passed remain on the books unless some future legislative action removes them. As a result there are a great many laws around the country that various people think should be repealed. Supposedly, these continue to include everything from restrictions on the duration of bingo games to proper etiquette of poultry crossing roads. The "sunset provision" is intended to effect the opposite outcome, that laws will automatically cease, unless there is further legislative action concluding that they remain necessary. In 2003, the protections of Section 440.185(11)(1998) were not re-enacted, and they disappeared from the statute. 

The newly signed HB 1107, fourteen years later, will protect the privacy of injured Floridians through a new statute section, 440.1851, which is more complex than 440.185(11)(1998). It will likewise protect privacy for five years, but will disappear from the law on October 2, 2022 unless re-enacted by the legislature. Thus, a physician wishing to solicit patients as Dr. Gerson did will have more difficulty locating and contacting patients. The provision will also diminish the volume of attorney solicitations which injured workers receive; some believe that there are many attorneys that have employed direct mail solicitation of injured workers using the information formerly available from the Division of Workers' Compensation. 

The potential for affecting the injured worker's rights is likely part of the drive to protect privacy in this manner. An injured worker with a singular statutory right of "one time change" may wish to use that carefully. Anyone that hires an attorney for any legal process may want to consult that attorney before taking any action that could affect rights (as in speak to your attorney before police questioning, that is what you hired the attorney for). The potential for unsuspecting injured workers unwittingly exercising their "one time change" without the knowledge of their attorney or the carrier may justify this newly enacted constraint on public information. 

But, the third story Compounds Billed at $1,000 or Greater will Require Preauthorization may be worthy of consideration also. In addition to the harm on the injured worker, that is the unwitting exercise of the "one time change," the solicitation by Dr. Gerson may have led to the prescription of a compound medication. Those compounds have been in the news recently in various states. There is a growing concern with the cost and efficacy of compound medications. States like Florida and Texas are taking steps to restrict them. And, it is possible that the involvement of compound creams in Dr. Gerson's telemedicine practice also influenced perceptions and state reaction. 

Thought the three stories may seem unrelated at first blush, it is suggested that they are intertwined to some extent at least. It may be worthy to consider that workers' compensation is a large and complex system, with many facets. When something affects one, there may be results that affect more. 

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