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Commission Rules MSHA Has Right of Access to Medical Records

Submitted by jsharpe on Fri, 06/01/2012 - 9:45am

Mine operators are required to turn over payroll records and medical information to MSHA upon reasonable request, the Federal Mine Safety and Health Review Commission has ruled.

In an opinion May 24, the Commission held that MSHA�s request for non-mandated records to verify compliance with Part 50 reporting requirements did not violate constitutional protections or invade privacy rights.  Nor did its request conflict with other federal or state laws. The decision affirmed an administrative law judge�s decisions upholding citations and orders MSHA had issued to eight mines.  It was signed by four of the five Commission members; Commissioner Michael F. Duffy dissented.

While the Commission�s ruling was limited to the information requested in the cases under review, its decision would appear to give MSHA broad authority to demand access to any documents the Agency believes may be needed to carry out its duties under the Mine Act.

The litigation arose after MSHA launched its Part 50 audit initiative in October 2010.  The purpose of the audit was to verify operators� information about injury and illness rates at their mines.  When the Agency requested records at two Midwestern mines operated by Peabody Energy Co. and six Appalachian mines run by the former Massey Energy Co., the two companies balked.

Specifically, the firms argued that MSHA was not entitled to payroll records and time sheets.  Nor did Agency personnel have a right to medical records, doctors� slips, drug testing documents, emergency transportation records and medical claims forms relating to accidents, injuries or illnesses that occurred at the eight mines or may have resulted from work at the mine.  MSHA�s request covered �all individuals working at your mine� from July 1, 2009 through June 30, 2010.

Inspectors cited the mines for refusing to turn over the records and then issued failure-to-abate orders for continuing noncompliance. An expedited hearing was held before Administrative Law Judge (ALJ) Kenneth Andrews in December 2010.  In separate decisions rendered in May 2011, Andrews affirmed the citations and orders, setting the stage for the companies� appeal to the Commission.

Broad Authority under Mine Act

The majority commissioners held that Sec 103(h) of the Mine Act gives MSHA broad authority because the provision does not bind the Agency to access only to mandated records.  Rather, the language makes clear that MSHA, "[in] addition to such records as are specifically required," may also have access to "such information" as MSHA may reasonably require.  Citing Andrews, the commissioners said, Sec. 103(h) creates  " 'a legitimate basis for enforcement of reporting requirements even without the Part 50 rules.' "

The panel also found Sec. 103(h) consistent with Secs. 108(a)(1)(E) and (F), which authorize a civil action whenever MSHA is refused any information or report it requests that it deems necessary to carry out the Mine Act.

According to the commissioners, Commission case law and the legislative history of the Mine Act also support this position.  Regarding the latter, they said, "Significantly, Congress rejected earlier proposed versions of this section [103(h)], which had limited the Secretary�s access to operators� records to those specific records which the Secretary had " 'prescribed by regulation.' "

They also held that the plain meaning of Part 50 reinforces MSHA�s authority; specifically, Part 50.41 gives MSHA access to accident, injury or illness data "which MSHA considers relevant and necessary."  Thus, the jurists concluded, �Like section 103(h) of the Act, section 50.41 of MSHA�s regulations lacks any language restricting the Secretary�s access to any particular documents.�

Countering the operators� argument that MSHA�s request required notice-and-comment rulemaking, the majority noted that the preambles of both the proposed and final rule for Sec. 50.41 "provide strong support for the Secretary�s broad right of access."  For instance, the proposed rule preamble specifically mentions the Agency�s right of access to medical and employment records and other company information to verify reports for compliance with Part 50.

Peabody and Massey, along with a group of miners who participated in the litigation as intervenors, argued that the medical records were off limits to MSHA because they were protected from disclosure under constitutional guarantees of privacy.  The group�s argument included that the Fourth Amendment�s protection against warrantless searches provides both employers and employees with an expectation of privacy for records not required to be maintained by law.

However, the commissioners brushed aside this argument by referencing decisions by the U.S. Supreme Court that neither mine operators nor miners have a reasonable expectation of privacy, in part because mines are pervasively regulated.  The Fifth Amendment requires due process, but due process is satisfied when the opportunity to be meaningfully heard is provided.  Thus, notice-and-comment rulemaking on Part 50 satisfied that constitutional guarantee, the majority said.

The commissioners also held that other federal and state statutes were not restrictive.  These include the Americans with Disabilities Act, Family Medical Leave Act, and Genetic Information Non-Discrimination Act (GINA).  MSHA is considered a public health entity under the Health Insurance Portability and Accountability Act (HIPAA).  As such, it has access to miners� medical information under GINA, the majority ruled.

The commissioners also ruled that MSHA�s request was relevant and necessary.  Besides being needed to verify information supplied by the mines, the request furthers MSHA safety and health mission and guards against injury and illness under-reporting. 

Duffy�s Dissent

In his 12-page dissent, Duffy said he would reverse the judge�s decisions and vacate the citations and orders.  He argued that constitutional exceptions allowing MSHA access apply only to records mandated by statute or the regulations implementing them.   He said MSHA either needed a warrant to obtain the data or "set forth requirements for the generation, maintenance, and release of such records through notice and comment rulemaking."

To support his opposition to MSHA�s records request, Duffy cited a 1979 ALJ decision which held that MSHA inspectors were not authorized to inspect records that were not legally required.  Calling Sewell Coal Co. a "seminal judicial pronouncement," Duffy suggested that the strength of the judge�s logic in the more than 30-year-old case has precluded MSHA from taking enforcement action until now to compel surrender of non-required medical records.

Duffy also warned that, absent formal standard setting, "the auditing initiative will continue to be an arbitrary moving target which this Commission and its judges will be continuously asked to review for 'reasonableness.' "

The commissioners rejected Duffy�s dissent in significant part because they said two Supreme Court cases that formed the foundation of his argument were inapplicable to the litigation.  They made the same argument about Sewell.

Neither Peabody nor Alpha Natural Resources, Massey's successor, responded to an e-mail request for comment this morning.

The foregoing is a service provided to subscribers of Sharpe's Point: On Mine Safety, Extracting Insights for Industry. Sharpe's Point: On Mine Safety is a publication of Sharpe Media LLC. 4519 34th Street S., Arlington, VA 22206-1914 Tel: 703-379-0652, Fax: 914-840-0716  Copyright 2012, Sharpe Media LLC.  All Rights Reserved.

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