Healthcare professionals (HCPs) are often asked to provide some form of documentation to help certify their patients’ medical conditions. To protect patient privacy, HIPAA (Health Insurance Portability and Accountability Act) significantly restricts both the type of information that can be disclosed and the categories of recipients that can receive it. However, there are numerous situations—in the context of employment rights or access to public benefits—in which disclosure of certain information may be necessary to help patients get access to protections and services to help them along the survivorship journey. Employment-related and public benefits–related certifications have two very different processes and potential consequences, so it is important to keep both in mind when trying to help your patient navigate the system.
Less Is More—When and How to Provide Medical Certification for Employment Matters In the context of certifying medical status for employees with cancer, there are two main occasions when an employer may request an employee’s medical information. However, even in those situations in which the employer is allowed to access certain information, the certification that you as an HCP provide can and should be limited. Under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), employers are allowed to get limited information about their employees’ medical status when requesting leave or a reasonable accommodation, respectively.
The FMLA gives certain employees working for covered employers (usually those with 50 or more employees) the right to take time off to care for themselves or family members with a serious health condition. Although the leave period is unpaid, and the law has very specific eligibility criteria, it is often very useful for people undergoing cancer treatment, because it gives 12 workweeks of job and health benefit protection. Any time an employee requests leave under the FMLA, an employer is allowed to ask for medical certification.
The ADA prohibits employers (those with 15 or more employees) from discriminating against employees on the basis of disability, including cancer or a history of cancer in many cases. Under the ADA, employers are required to grant “reasonable accommodations” to qualified employees with disabilities to allow the employees to perform the essential functions of their job. Employers have to grant that accommodation unless doing so would be an undue hardship for the employer. When an employee makes a reasonable accommodation request, employers are allowed to require some kind of medical certification when the disability or need for accommodation is not known or obvious.
In either case, if a patient is not able to provide this information to the employer, the employer can deny the leave or accommodation. However, where employment-related medical certifications are concerned, less is often more. Although many employers would never discriminate against an employee because of his or her medical history or cancer diagnosis, unfortunately some would. To ensure that all patients are protected against unnecessary discrimination, best practices dictate that HCPs should give just enough information to address the patients’ goals with the employer, but not give the employer too much information that may be used against the patient as an employee. The Table highlights the differences in how and whether to report information about your patients’ medical status.
More Is More—When and How to Provide Medical Certification for Public Benefits Matters Whereas in the employment context HCPs need to balance the potential for discrimination by an employer against the ultimate goal of leave or accommodation for the employee, in the public benefits context, the more medical information you can provide for a patient the better. For example, public benefits–related medical certification is required under an application for Social Security Administration (SSA) benefits—including Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI)—or under Medicaid. For any of these programs, eligibility is determined using a governmental standard for “disability” that requires proof of some kind of medically determinable impairment. With that said, although more medical information increases the chances of a benefits application going through, the governmental programs are concerned with facts, not opinion. Too often, HCPs see a patient presenting with a serious health condition and know that the patient has a disability. However, because the specific agency overseeing each application ultimately decides whether the patient is “disabled” by its own definition, HCPs should refrain from using conclusory language such as “the patient is disabled” in the certification and stick to providing as much supportive medical information as possible.
HCPs should familiarize themselves with the language that the SSA uses in its listing of disabling conditions (see http://www.ssa.gov/disability/professionals/bluebook/AdultListings.htm) and use that language where appropriate. HCPs also should consider whether the patient has symptoms of more than one condition listed, particularly where the cancer diagnosis has had a negative effect on the patient’s mental health. For example, someone’s cancer might not be quite as advanced as the language requires for that condition, but when combined with symptoms of depression or a mobility impairment, the person cannot work. Although a patient must be eligible under the programs’ other criteria, SSDI and SSI also offer a Compassionate Allowances program that expedites the application process for severe conditions that fall on the list (see http://ssa.gov/compassionateallowances/conditions.htm).
Overall, the process for medical certification is relatively straightforward—just remember that keeping the patients’ best interests in mind means using discretion with the amount of information you as an HCP disclose when certifying the documents your patients provide.
For information about the Cancer Legal Resource Center, please visit www.cancerlegalresourcecenter.org
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