TN 5 (09-04)

A. Definitions

1. Medical Records

Medical records include:

• Any records originated by physicians or other health professionals,

• Any records derived from reports by physicians or other health professionals,

• Medical evaluations and determinations (including forms SSA-892, SSA-831, SSA-833, and SSA-834 and the rationales and diagnoses therein), and

• Records originated by lay persons which are used to adjudicate claims (e.g., records in a case where lay evidence is used to substantiate epileptic seizures or to document mental impairments).

“Medical records must not be released, or their contents discussed, over the telephone under any circumstances (GN 03360.005.A.1.a.).”

NOTE:  FOs and PSCs may refer questions about whether a record is a “medical record” to the ARC, Programs. Central office components may contact the Office of Disability's Special Programs Branch. (ODIO personnel should contact their Operations Analysis Staff.)

2. Adverse Effect

An adverse effect is an effect likely to occur if direct access by an individual to his or her medical records is expected to

• disrupt a doctor-patient relationship,

• interfere with the patient's medical management, or

• negatively affect the patient in some other way.

EXAMPLE 1:  An individual has been diagnosed as diabetic. The medical record indicates a good prognosis with treatment involving medication, diet, weight control, and exercise. An adverse effect is not likely.

EXAMPLE 2:  An individual has a severe heart impairment. The doctor has noted in the medical record that the individual's knowing of the severity of the condition could cause complications. An adverse effect is likely.

EXAMPLE 3:  A doctor has included very candid remarks in the report which might incite the patient to threaten the doctor. An adverse effect is likely.

B. Policy - Designated Representative

If direct access by an individual (adult or minor child) to medical records about himself or herself is expected to cause an adverse effect on the individual, SSA will not release the medical records to the individual. The individual will instead be asked to name in writing a responsible person to act as a designated representative to receive the records.

If no adverse effect is likely to occur, medical information can be provided directly to the subject individual requesting access to the records.

C. Procedure - Determining Adverse Effect

Take the following actions to determine if an adverse effect is likely.

1. Review of Medical Records

a. Field Offices

FO should review medical records in the FO to determine likelihood of an adverse effect. For electronic folders, eView should be used as appropriate. See DI 81005.000 for instructions on using eView."

If in a particular case there is doubt as to whether an adverse effect could occur, the FO manager should refer the case for a determination to:

b. Central Office Components

For a determination when the individual has not named a designated representative, refer cases to the Medical Consultants Staff, at:

c. Program Service Centers

Refer cases to the Regional Office's Regional Medical Advisor.

2. No Adverse Effect Likely

Release records directly to the subject individual. Document the file to reflect that fact.

3. Adverse Effect Likely

When you receive a request for access to medical records, take the following actions:

• Review the individual's medical records and if no adverse effect is likely, release the records directly to the subject individual.

• If an adverse effect is likely, or if a decision cannot be made

  • Ask the individual to designate a responsible person to act as his/her representative to receive the records, if he/she has not already done so. The responsible person should be someone who is capable of explaining the contents of the records to the individual.

  • Send the records to the designated representative named in writing by the subject individual. (The representative's responsibility will be to review the individual's medical records and explain the information to the individual; the representative does not have discretion to withhold any portion of the records from the individual.)

• Notify the individual requesting access that the medical records have been referred to the representative.

• Send the following notice, with the records, to the designated representative.

a. Notice to the Representative

Send the following notice, with the records, to the designated representative.

TEXT

We are writing to you because [1] told us that you will review [2] medical records for [3].

[4] asked for copies of the medical records we have about [5]. We cannot give these records directly to [6] because of [7] health.

We have determined that this information contains sensitive information which may have an adverse effect on [8]. Please keep this in mind when you explain this information to [10]. Discuss the contents of the records with [11] before you give them to [11]. As representative, you cannot withhold medical information from the individual.

We are sending you the following information: [12].

If you have any questions, you may call, write or visit any Social Security office. If you call or visit our office, please have this letter with you and ask for [13]. The telephone number is [14].

FILL-INS

[1]  name of beneficiary, e.g. “John Smith”

[2]  his/her

[3]  him/her

[4]  last name of beneficiary, e.g. “Mr. Smith”

[5]  him/her

[6]  him/her

[7]  his/her

[8]  last name of beneficiary, e.g. “Mr. Smith”

[9]  his/her

[10]  him/her

[11]  him/her

[12]  description of the enclosed information

[13]  name of FO contact

[14]  telephone number of FO contact

b. Notice to the Individual

Send the following notice to the individual to explain that the records have been sent to the representative.

TEXT

We are writing to tell you that we sent your medical records to [1] at [2]. [3] will review and discuss the information with you before giving all of the information to you.

If you have any questions, you may call, write or visit any Social Security office. If you call or visit our office, please have this letter with you and ask for [4]. The telephone number is [5].

FILL-INS

[1]  name of the designated representative

[2]  address of the designated representative

[3]  He/She/They

[4]  name of FO contact

[5]   telephone number of FO contact

D. Procedure - Designating a Representative

If an adverse effect is involved, take these actions to help the individual designate a representative.

1. Explaining Reason for Designating a Representative

Tell an individual who asks for an explanation that designation is required by SSA regulations (20 CFR § 401.55) which are based on the Privacy Act.

Do not tell an individual that direct access of a medical record is likely to have an adverse effect on him/her.

2. Naming the Designated Representative

If the individual does not designate a representative when requesting access, make him or her aware of the requirement for designating a representative in writing.

Because medical records contain technical information, encourage the individual to select a medical professional to serve as designated representative. However, the individual may have any responsible person of his/her choice who is capable of explaining the medical information, including a family member, serve in this capacity.

Use the following notice language when asking the individual to designate a representative.

TEXT

You asked for copies of medical records we used in your [1]  claim. We reviewed the records. We decided that we must give them to someone you choose who will review and discuss the information with you. You may name any responsible individual who is capable of explaining the medical information to you.

Please give us the name and address of the person you want to receive your medical records. You may use the office address shown above to send us this information.

If you have any questions, you may call, write or visit any Social Security office. If you call or visit our office, please have this letter with you and ask for [2]. The telephone number is [3].

FILL-INS:

[1]  a. Disability Insurance
     b. Supplemental Security Income

[2]  name of FO contact

[3]  telephone number of FO contact

3. Assistance in Obtaining a Designated Representative

If an individual says he/she is unable to locate someone to act as a designated representative, suggest the following possible sources for his/ her consideration:

• Social services workers,

• Members of the local public health service,

• Legal aid attorneys, and

• Other public agencies.

If the individual refuses to designate a representative after being advised of the requirement to have one, as a final action, offer to assist in finding someone willing to act as the designated representative. (ODIO should ask the local FO to assist the individual.)

Use the following notice language to offer advice on finding a representative.

TEXT

We are writing to you about your request for copies of medical records we used in your [1]  claim.

As we told you earlier, we require that you choose someone to receive your records. This person will review the information and discuss it with you. Because this is medical information, you may wish to choose a doctor or a health worker to review your records.

Since you have not yet chosen someone, we want to give you some suggestions about groups who might be able to help. We have found that the following groups are often willing to help people by reviewing their records:

• local social services,

• local public health services,

• legal aid societies, and

• other public agencies.

When you give us the name and address of the person you want to review your medical records, we will make sure they get the records. You may use the office address shown above to send us this information.

If you have any questions, you may call, write or visit any Social Security office. If you call or visit our office, please have this letter with you and ask for [2]. The telephone number is [3].

FILL-INS:

[1]  a. Disability Insurance
     b. Supplemental Security Income

[2]  name of FO contact

[3]  telephone number of FO contact

4. Refusal to Designate a Representative

When an individual has received the notice shown above and still refuses to designate a representative, one of the following procedures will apply.

a. Case Below the Hearing Level

Document the file to include the determination of adverse effect, copies of all interviews and copies of letters received from and sent to the requester. Forward the file to:

Mark envelope “DO NOT OPEN IN MAIL ROOM”. OD will advise the individual of his/her rights.

CAUTION:  In any case in which an individual threatens bodily harm to himself/herself or others, contact OD immediately.

NOTE:  If other action is pending, see GN 03340.010A.3.

b. Case at Hearing or Appeals Council Level

Refer the access request and all pertinent materials to the Office of Disability Adjudication and Review (ODAR). Notify the requester that ODAR will answer the request. This procedure applies to all cases in which ODAR has jurisdiction, including:

• Cases which will be referred to ODAR but have not yet been sent,

• Cases in ODAR's possession, and

• Cases returned by ODAR for further development.

NOTE:  If ODAR returns a case to the FO asking that they provide access, ODAR will indicate what records will be given to the individual.

c. Case Has Completed Hearing and Appeals Council Levels

Follow the procedure used in cases below the hearing level (see GN 03340.035D.4.a.).

E. Policy - Access to Medical Records of a Minor

Generally, a parent or legal guardian may not directly access medical records of a minor. A parent (natural or adoptive) or legal guardian requesting access to medical records on behalf of a minor must name a physician or other health professional (excluding family members) to receive the records as designated representative.

Direct access is usually made only in hearing and Appeals Council cases (see GN 03340.035F.2.).

F. Procedure - Access to Medical Records of a Minor

If a parent or guardian requests access to medical records of a minor, take these actions.

1. Case Below the Hearing Level

If the case is below the hearing level:

• Ask the designated physician or health professional to consider any adverse effect disclosure of the record to the parent or legal guardian might have on the minor.

• Send the following letter to the requesting parent or legal guardian.

TEXT

You asked for copies of medical records we used in [1]  claim. Because of the type of information, we must send it to a doctor or a health worker.

We sent [2] medical records to [3] at [4]. [5] will review the information and discuss it with you.

If you have any questions, you may call, write or visit any Social Security office. If you call or visit our office, please have this letter with you and ask for [6]. The telephone number is [7].

FILL-INS

[1]  name of child beneficiary, possessive case, e.g. “John Smith's”

[2]  his/her

[3]  name of the designated doctor or health worker

[4]  address of the designated doctor or health worker

[5]  He/She/They

[6]  name of FO contact

[7]  telephone number of FO contact

• Inform a minor age 12 and over that his/her medical records have been sent to a physician or health professional.

• Do not grant direct access if a parent or legal guardian refuses to name a designated representative. Refer the case to

  Office of Disability Programs
  Office of Process Policy
  Suite 4550, 4th Floor Annex Building
  6401 Security Boulevard
  Baltimore, MD 21235-6401

  The request must also be considered under the FOIA.

2. Case at Hearing or Appeals Council Level

When a case is at the hearing or Appeals Council level, remember only ODAR may grant a parent or legal guardian direct access to a minor's medical records, and then only to protect a child's right to due process.

Refer to ODAR any case in which the parent or legal guardian refuses to name a designated representative.

G. Procedure - Access to ADAP Records

Handle requests for access to Alcohol and Drug Addiction Patients (ADAP) records in the same manner as other requests for access to medical records.