We wish to clarify an issue brought recently to our attention regarding Medical Review Officers (MROs) contacting employees’ treating physicians. For a number of years, we have emphasized that Health Insurance Portability and Accountability Act (HIPAA) rules do not apply to MROs carrying out their verification process duties under 49 CFR Part 40. That position still holds: MROs do not need and must not attempt to obtain an employee’s permission in order to confer with prescribing physicians.
The General Issue Update Question and Answer [dated 07/06] is the Department’s official and authorative position in this matter. It states, in part:
MROs need no written authorizations from employees to verify drug test results, to discuss alternative medical explanations with prescribing physicians and issuing pharmacists, to report results to employers, to confer with Substance Abuse Professionals (SAPs) and evaluating physicians, or to report other medical information (see §40.327).
If an employee presents a medical explanation during the verification interview, we encourage the MRO to contact the treating physician if the MRO has suspicions or questions resulting from the interview. We also encourage the MRO to contact the pharmacy to verify the legitimacy of the prescription. Requiring a waiver or consent for this information is contrary to Part 40, and it would impose a requirement on an employee for a release that is also counter to Part 40 (see §40.355).
Senior Policy Advisor
Office of Drug and Alcohol
Policy and Compliance
U.S. Department of Transportation