Addressing Confidentiality with the COVID-19 Surveillance System

Ordinarily, the Americans with Disability Act (ADA) prohibits an employer from performing medical tests/clinical exams on its employees – but these are no longer ordinary times – we are now living in a new normal with unfolding waves of the COVID-19 pandemic, prompting the EEOC and the ADA to issue updates regarding what is permissible in these times. 

On April 23, 2020, the Equal Employment Opportunity Commission (EEOC) stated that “an employer may choose to administer COVID-19 testing / temperature checks to employees before they enter the workplace to determine if they have the virus.” Recent updates with guidance from these organizations indicate that their existing laws are not to interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities with regards to steps employers need to take for COVID-19 to safeguard the health of coworkers, customers, and for participating in the control of the pandemic. Further, the EEOC update indicated that “During a pandemic, ADA-covered employers may ask employees if they are experiencing symptoms of the pandemic virus, such as fever, chills, cough, shortness of breath, or sore throat.” The EEOC indicated that Employers are to maintain all such information about an employee’s illness or absence thereof as a confidential medical record in compliance with the ADA.” 

The EEOC’s most recent update specifically provides an answer to the following question: “May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace?” In answering this question, the EEOC applies the ADA standard which requires medical testing of employees be “job related and consistent with business necessity.” Applying this standard to the current COVID-19 pandemic, the EEOC states employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. But, the EEOC notes that employers should ensure that the tests are “accurate and reliable.” The EEOC’s ADA regulations also require direct threat determinations be based “on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” To satisfy these standards, employers should consider FDA and CDC guidance concerning standards for safe and accurate testing, including evaluating the incidence of false positives or negatives with the test. So like its earlier statements, allowing employers to conduct temperature checks on employees, this latest addition provides employers with additional support for conducting or requiring employees to be tested for COVID-19 before returning to the workplace.

The COVID-19 Surveillance System embodies a comprehensive set of components to determine transmission and contraction risk (Click here to learn more): COVID-19 testing for active infection using the nasal RT PCR test from Quest Diagnostics, complete clinical evaluation at baseline of employees enrolled into the program (temperature checking, pulse oximeter readings if needed, paired with questions concerning potential COVID-19 symptoms or activities (e.g., attendance at mass gatherings, family member COVID status, etc.) that increase the risk of COVID-19 exposures. In addition all enrolled employees are also tested for antibodies (IgM & IgG). Though none of these tests are yet definitive or expressly recommended by the CDC, they provide additional data for computation of the different types of risk and the summary recommendations generated by the system for an employee. We have provided further information regarding serology tests from the FDA.

The other key issue to address here is the disclosure and confidentiality of an employee’s COVID-19 test results. According to the EEOC guidance, employers are to maintain confidentiality of employees’ medical information, including COVID-19 test results. After test results are received, the tester can share the results with a designated individual at the employer, who can then communicate the information to managers on a need-to-know basis only. And this is exactly the way the COVID-19 Surveillance System works – employee participation is decided upon by the employer and is voluntary and the results / recommendations from the data algorithms are accessed via a secure portal with restricted access to key designated users at the employer organization, and with employees having access to their own results. The information provided to the employer for a given employee is a summary based data driven recommendation – safe to return to work (green), work from home for XX days (yellow), and self-isolate to minimize transmission risk (red). An employee’s identity is only disclosed to their manager only if it is necessary to prevent a direct threat to safety to co-workers and or customers. 

Also, in accordance with the ADA / HIPAA, the system is compliant with requirements for an employer’s storage of medical information. As required by the ADA, the COVID-19 Surveillance System maintains the COVID-19 related medical information concerning an employee separately from the employee’s personnel file in a confidential and secure encrypted medical data repository. In addition, even after the end of their subscription, employers will have access to the data and information in the encrypted secure repository for the statutory period of 7 years.

We are expecting the EEOC and ADA guidelines to continue to evolve as testing becomes more widely available and state governments begin to loosen stay-at-home restrictions. These guidance are in place to address a “Direct Threat,” and most likely will no longer apply once the pandemic is no longer deemed a threat. What remains consistent under ADA guidelines, however, is the illegality of firing an individual over a condition like COVID-19. Also note that the EEOC’s opinion only addresses concerns under the ADA. Employers also need to consider state and local laws, including privacy concerns that might apply.

ADDITIONAL RESOURCES

1. To view the EEOC update, click here for the latest update: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

2. To review the FDA’s device center’s webpage listing the serology tests that are administered under the EUA policy, some of which are directed toward a single antibody while others capture multiple antibodies, click on the link below. The list includes data on sensitivity and specificity along with positive and negative predictive values (PPV and NPV, respectively). The agency has advised that the PPV and NPV values are still based on an assumed prevalence of 5% in the area where a given serological test is administered.

https://www.fda.gov/medical-devices/emergency-situations-medical-devices/eua-authorized-serology-test-performance

Other links with more detail on above topics:

https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act

https://www.venable.com/insights/publications/2020/04/eeoc-says-ok-for-mandatory-employee-covid19

https://www.natlawreview.com/article/eeoc-opines-covid-19-testing-employers

FAQs- COVID 19 Surveillance System

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FAQ

What services are provided as a part of my annual fee?
  • Same-day or next business day appointments
  • Direct access to Dr. Espinosa via his personal cell phone after hours, weekends, and holidays
  • Minimal office wait times
  • Longer, more comprehensive appointments
  • House Calls (requires additional trip fee)
  • A strong focus on preventive medicine, long-term health and wellness
  • A personal professional relationship with your physician
What is the mission of Buckhead Medicine?

We strive to provide the highest quality medical care, emphasizing a comprehensive approach to prevention and disease management. We want patients to be completely satisfied with every aspect of their care.

Where is your office and are you on the medical staff of a local hospital?

Yes, Dr. Espinosa’s office is in Buckhead, a suburb of Atlanta. He is on the medical staff of Piedmont Hospital in Atlanta, Georgia and Northside Hospital in Atlanta, Georgia. If you require hospitalization, Dr. Espinosa will coordinate your patient care by working with the hospital based physicians. He will also make periodic hospital visits during your hospitalization.

Who will cover for you when you are not available?

On infrequent occasions when Dr. Espinosa is out of town or otherwise unavailable, he will have another qualified physician cover for him. Even while out of town, Dr. Espinosa will generally be available by phone to his patients and to his covering physicians. For practical reasons, we reserve the right to designate another qualified physician to perform any and all services should the need arise.

Do you accept insurance?

Commercial Insurance and Medicare:
Buckhead Medicine is an In-Network provider for Blue Cross Blue Shield PPO, Aetna, Coventry, Humana, Cigna, Tricare and United Healthcare. Our practice fully participates in the Medicare program. Buckhead Medicine accepts all other insurance as an Out-of-Network provider. We, however, do not participate in the Medicaid program. Regardless of your plan, we will bill your insurance for all covered services. It is our intention that no insurance-covered medical services are included in your annual fee.

HMO and Medicare HMO:
We do not participate in HMO programs. As such, HMO patients will not be able to join the practice until they transition to either a PPO or traditional Medicare plan.

Do I still need insurance if I enroll with you?

Yes. Personalized medical practices do not take the place of general health insurance coverage. Buckhead Medicine is a primary care medical practice, not a health insurance program. You are advised to continue your PPO, Medicare or other insurance program. If you are an uninsured individual and desire to enroll in the practice, we will provide you with a discounted fee schedule for office visits, tests and procedures.

What if I don't have health insurance?

For uninsured patients, Buckhead Medicine offers an uninsured patient plan. Although this plan is not insurance, it does cover for all clinic visits and any labs or tests that are performed in our office. In many cases this plan provides for significant cost savings to uninsured individuals. Please contact our office for additional details on this plan.

Will my insurance still be billed for my office visits?

Yes, we will bill your insurance company directly. The annual fee does not cover costs for regular exams or testing conducted inside or outside of the clinic. These costs are billed to your insurance provider in the same manner that traditional practices bill insurers.

Is there a co-payment?

If you have commercial insurance, we will collect the co-payment at the time of service. Medicare patients usually do not require a co-payment.

Do you bill Medicare for the annual fee?

No. The annual fee is not covered by Medicare. The fee only includes services that are not covered by Medicare and, as such, cannot be paid for or reimbursed by Medicare. We will bill Medicare for your sick visits and for any additional services performed at this practice that are covered by Medicare.

Will my commercial insurance reimburse my annual fee?

No, commercial insurance does not typically reimburse for the annual fee. However, some Flexible Spending Account and Health Savings Account plans may pay for all or part of the annual fee. In addition, some insurance plans allow the concierge fee to apply towards the annual deductible. Members are advised to consult their human resources representative at their place of employment.

Is the annual fee tax deductible?

In many cases the annual fee is a tax deductible healthcare expense. Patients are advised to consult with their tax consultant to clarify qualification in their particular circumstance.

Does the annual fee cover lab, x-ray, specialist fees and hospitalization?

Services such as labs, x-ray, specialty visits or hospitalizations are covered based on coverage determined by your insurance plan.

Are there age limits?

Dr. Espinosa is an Internal Medicine physician. His specialty is Adult medicine. Dr. Espinosa is trained to manage acute and chronic medical illnesses among adults. As such, the practice is limited to patients 17 years of age and older.

What if I have an emergency?

If you have a life threatening emergency, call 911 immediately. After you call 911, please call Dr. Espinosa. He will contact the hospital and notify the emergency room of your tentative arrival. In addition, Dr. Espinosa will provide the emergency room with pertinent medical history information

How far in advance do I need to book an appointment?

Dr. Espinosa is committed to providing his patients with easy access to care. All urgent visits will be accommodated either same day or next day, placing the greatest priority on the sickest patients. Annual physical exams will be booked 1 to 2 weeks in advance.

What do I do if I become ill while traveling or away on an extended vacation?

Call 911 if you have a life threatening emergency. Then call Dr. Espinosa. Call Dr. Espinosa first if the problem is minor. With the exception of a few controlled substances, most prescriptions can be ordered anywhere in the country. If necessary, it may be possible for Dr. Espinosa to find you a resource in your area. If you seek care at an emergency room or urgent care center out of our area, we request that you have the doctor seeing you call Dr. Espinosa for coordination. Dr. Espinosa will be readily available by phone for consultation with you and/or other health care personnel. If you should require hospitalization while away, at your request, Dr. Espinosa will establish phone communication with you and your attending physician(s) to ensure continuity of care.

Do you make house calls?

House calls will be available to Buckhead Medicine members, within a limited radius from the clinic. These will be done as deemed appropriate by Dr. Espinosa on a case-by-case basis. Home visits will be billed to your insurance provider similar to an office visit. A separate trip fee is required for house calls.

What if I need to see a specialist or a surgeon?

Of course, Buckhead Medicine patients are free to see any specialist they wish. We are available to help you decide what specialists to see and to coordinate such consultations. Patients may frequently request for “doctors in my area”, and we can accommodate this. We will ensure that the most appropriate resources are used, the earliest arrangements are made, and your applicable medical information is sent in advance of your specialist visit.

What about the cost of prescription medications?

The cost of prescription medications are the patient’s responsibility and in most cases should be covered by their insurance plans. We have expertise in assisting patients in purchasing medications in the most cost effective manner.

Will I be required to pay my annual fee even if I do not use your services?

Yes. Paying your annual fee allows you to be a member of the practice whether you are sick or well. We encourage our patients to utilize the amenities offered such as wellness consultations and emails for appropriate non-urgent health related questions, regardless of your state of health.

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