SSA - POMS: GN 03340.035 - Access to Medical Records

A. Adverse effect policy

Under certain situations, release of medical records directly to the subject of the records may cause an adverse effect, negatively impacting the individual. If an adverse effect is likely to occur, do not release the medical records directly to the individual. When an adverse effect is likely, individuals must designate in writing a responsible person to act as a designated representative to receive his or her medical records.

1. Medical records

Medical records include, but may not be limited to:

•

any records created by physicians or other health professionals;
•

any records derived from reports created by physicians or other health professionals;
•

medical evaluations and determinations (including Forms SSA-831 Disability Determination and Transmittal, SSA-833 Cessation of Continuance of Disability or Blindness Determination and Transmittal, SSA-834 Continuation Sheet for Disability Determination, and SSA-892 End Stage Renal Disease Medicare Determination, and the rationales and diagnoses contained therein); and
•

records about the health of the claimant that originated from contacts with other individuals that we use to adjudicate claims (e.g., records or information received from other individuals that substantiates epileptic seizures or certain mental impairments).

IMPORTANT: We will not, under any circumstances, release medical records or discuss their contents in response to a telephone request.

Employees should refer questions regarding whether a particular record is a medical record to the following places:

•

Field offices (FO) and Program Service Centers (PSC) should contact the Assistant Regional Commissioner.
•

Central Office components should contact the Office of Disability Programs (ODP).
•

Office of Disability and International Operations employees should contact their Operations Analysis Staff.

2. Designated representatives

A designated representative is a representative that an individual elects in writing to receive medical records on the individual’s behalf when an individual’s direct access to the medical records is likely to cause an adverse effect to the individual.

NOTE: A designated representative is not the same as an “appointed representative” or a “representative payee”, although it may be the same person if the individual so decides.

3. Adverse effect

An adverse effect is a consequence likely to occur if granting direct access to an individual’s medical records is expected to cause:

•

A disruption of the doctor-patient relationship;
•

An interference with the individual's medical treatment or management; or
•

A negative effect on the individual in some other way.

If an adverse effect is likely to occur, do not release the medical records directly to the individual. If an adverse effect is not likely, you may release the medical records directly to the individual.

EXAMPLE 1 - Adverse effect not likely

John Doe has diabetes. The medical record indicates that the prognosis is good with treatment involving medication, diet, and exercise. In this example, an adverse effect is not likely.

EXAMPLE 2 - Adverse effect likely

Jim Doe has a mental health disorder. The doctor notes some aggressive behavior tendencies in Mr. Doe’s record. Direct access to the doctor’s report may provoke Mr. Doe to threaten the doctor or other members of the doctor’s staff. In this example, an adverse effect is likely.

B. Procedure for adverse effect determinations

When it appears that an adverse effect is not likely to occur, release the records directly to the individual and document the claim to reflect the action taken.

When an adverse effect is likely, individuals must designate in writing a responsible person to act as a designated representative to receive his or her medical records. The designated representative should be someone who is capable of reviewing and explaining the contents of the medical records to the individual. The designated representative does not have discretionary authority to withhold any portion of the medical records.

1. FOs

FOs should review the medical records to determine the likelihood of an adverse effect. Use eView for electronic folders. If the FO is unable to make an adverse effect determination, send the case to ODP at ^ORDP ODP OMA Policy Request for a determination or via mail to:

Office of Disability Policy

Office of Medical Assistance

6401 Security Boulevard

4550 Annex Building

Baltimore, MD 21235

2. PSCs

Send cases to the Regional Office’s Regional Medical Advisor when:

•

An adverse effect determination is unclear; or
•

An adverse effect appears likely and the individual to whom the record pertains has not named a designated representative.

3. Disability Determination Services (DDS)

A DDS disability examiner has authority to make adverse effect determinations. If a disability examiner is unable to make an adverse effect determination, he or she may consult with a DDS medical advisor.

4. Central Office components

When you cannot make an adverse effect determination or an adverse effect appears likely, and the individual to whom the record pertains has not named a designated representative to receive the medical records, send the case to ODP at ^ORDP ODP OMA Policy Request or via mail to:

Office of Disability Policy

Office of Medical Assistance

6401 Security Boulevard

4550 Annex Building

Baltimore, MD 21235

C. Procedure for designating a representative

If an adverse effect is likely, the individual must designate a representative. Follow these steps when an individual must designate a representative:

1. Explain the reason for designating a representative

IMPORTANT: Do not tell the individual that direct access to a medical record is likely to have an adverse effect on him or her.

If you receive questions about our policy of designating a representative to receive an individual’s medical records, explain that our regulations (20 CFR § 401.55) require individuals requesting access to medical records to name, in writing, a responsible person. This person must be willing to review the records; discuss the contents of the records with the individual; and release the medical records in their entirety directly to the individual.

2. Naming the designated representative

If an individual does not designate a representative to receive his or her medical records, and an adverse effect is likely, explain our requirements as stated in this section. Because medical records often contain technical medical terms, encourage the individual to select a medical professional to serve as the designated representative. However, an individual may designate any responsible person who is capable of explaining the medical information to serve in this capacity, including a family member. The individual must provide their designation to us in writing.

IMPORTANT: The individual must provide us with a proper consent form, authorizing the disclosure of their information to a designated representative. The individual may provide us with a valid 3288.

3. Assistance with obtaining a designated representative

An individual may be unable to find someone to act as a designated representative or may refuse to designate a representative. Offer to assist in finding someone willing to act as the designated representative. OCO employees should request the FO to assist the individual. In these instances, send a notice to the individual requesting they designate a representative to receive their medical records and provide them with local service agencies or public health service agencies that may act as a designated associate for the individual.

4. Refusal to designate a representative

If an individual refuses to name a designated representative, follow the applicable procedure below.

a. Cases below the Administrative Law Judge (ALJ) Hearing Level

Document the file to include the adverse effect determination, copies of all interviews and copies of letters received from and sent to the requester. ODP will review the file and advise the individual of his or her rights.

b. Cases at ALJ Hearing or Appeals Council level

Refer access requests for cases at the hearing or Appeals Council level to the Office of Hearings Operations (OHO). Notify the requester that OHO will respond to the request. Follow these instructions for all cases when OHO has jurisdiction, including:

•

Cases that will be referred to OHO, but have not yet been sent;
•

Cases in OHO's possession; and
•

Cases OHO returned for further development.

OHO may return a case to the FO asking that the FO provide access. In these instances, OHO will indicate what records the FO should provide to the requester.

c. ALJ Hearing and Appeals Council levels completed

Follow the same procedure used for cases below the hearing level.

D. Procedure for requesting access to medical records of a minor

The agency follows two procedures in granting access to medical records of a minor child:

First, under the Privacy Act of 1974 and the agency's privacy regulations at 20 C.F.R. § 401.40 and 401.55(c), a parent or legal guardian may request access to a minor's records, when acting on the minor's behalf. Requests for Privacy Act access should be directed to the manager of the SSA system of records in which the records are maintained or made in person at the minor's local Social Security office. However, under our regulations, a parent or legal guardian may not directly access the medical records of a minor child. A parent or legal guardian requesting access to medical records on behalf of a minor child must designate a physician or other health professional, excluding family members, to receive the records.

Second, SSA will provide direct access to a parent or legal guardian when SSA has determined that due process requires the release of the information. In these cases, we permit direct access to a minor child’s medical records only in Hearing and Appeals Council cases or at the Disability Hearing Unit (DHU) level, to protect the child’s right to due process. The agency handles these disclosures of and access to a minor child's medical records at these levels as part of the adjudication process (separate from processing as a Privacy Act access request).

In both Privacy Act access requests and due process access cases, the parent or legal guardian must be acting in the best interests of the child. When the parent or legal guardian may not be acting in the child's interests (e.g., if a minor objects to disclosure of his or her medical information to the parent or legal guardian), consult with OPD prior to disclosure.

If a parent or legal guardian requests access to the medical records of a minor child, take the following actions:

1. Privacy Act Access Requests and Cases below the ALJ Hearing and DHU levels

When processing Privacy Act access requests or cases below the ALJ Hearing and DHU levels:

•

Ensure a proper request for records has been made and that a representative has been designated;
•

Ensure the parent or legal guardian's identity has been verified;
•

Ask the designated physician or health professional to consider any adverse effect disclosing the record to the parent or legal guardian may have on the minor; and
•

Send a notice to the requesting parent or legal guardian informing them that the medical records were sent to a designated doctor or health worker.

Send the medical records of a minor 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 ODP.

2. Cases at ALJ Hearing or Appeals Council level or DHU level, if Due Process Need for the Records

When a case is at the ALJ hearing or Appeals Council level, only OHO may grant a parent or legal guardian (whose identity has been verified) direct access to a minor child’s medical records to protect the child’s right to due process. If OHO determines that due process does not require disclosure, please follow the process in section 1 above.

When a case is at the DHU level, only the DHU may grant a parent or legal guardian (whose identity has been verified) direct access to a minor child's medical records to protect the child's right to due process. If the DHU determines that due process does not require disclosure, please follow the process in section 1 above.

E. Access to Alcohol and Drug Abuse Patients (ADAP) medical records

ADAP records are defined in 42 U.S.C.§ 290dd-2(a) as records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States. With limited exceptions, the agency is prohibited from disclosing ADAP records, without the individual’s consent. Thus, when ADAP records are likely to have an adverse effect on an individual, the consent to disclose the records to the person’s designated representative must meet both SSA requirements and the requirements in 42 C.F.R. § 2.31. See GN 03305.030 for further guidance on disclosure of ADAP records and the form of consent.

Social Security

Program Operations Manual System (POMS)

GN 03340.035 Access to Medical Records