LETTERS TO EDITOR

Suspended for HIPAA Violation

Dear Editor,

I am a billing manager and supervise 12 employees in my department.   I have worked for my employer, a hospital, nearly 35 years, and in 5 years will reach retirement.  At that time, my pension benefits will vest 100%.  I am the top-paid employee in my department.   One of my employees recently went in for surgery.  When I called our operating room, I asked how the surgery had gone and whether the procedure performed was laparoscopic or open since an open procedure would mean that she would be staying in the hospital and the “get well soon” card from the entire department would need to be sent to the hospital and not to my employee’s home.  I also wanted to know how long her recovery would be and how long she’d be out of work.   I was told that the surgery went well, that the procedure done was laparoscopic and that she was going home that same day.  I told my staff, and we were all very glad.  We sent the “get well soon” card to her home.

Next thing I knew, I got a letter from the hospital telling me that I was suspended!  The hospital alleges that I have violated HIPAA Privacy Rule by disclosing protected health information to my staff about another employee for “personal gain”.   Apparently someone complained and the hospital won’t tell me who that person is!  I was suspended immediately without pay for a “major infraction”.   The Human Resources Department has offered me two choices:   to take “early retirement” with full payment of my accrued vacation, or to be fired without full payment of my accrued vacation.  I haven’t been to work in a week.   This is a Kafkaesque nightmare!  What have I done wrong?  What should I do? 

Yours truly,

Shocked

P.S. The hospital is in severe financial shape, and my boss who oversees my entire department has been told to cut expenses.   How coincidental that my boss is also the hospital’s HIPAA Privacy Officer!

Dear Shocked,

Clearly the hospital has run amuck!  Or, as I suspect, there’s something else that is going on here.  Let’s start with the HIPAA Privacy Rule.

The information that you obtained about your employee was, no doubt, Protected Health Information (PHI) under the HIPAA Privacy Rule.   Was there an appropriate basis for you obtaining and using that information?   I think clearly there was.   Arguably, you were using that protected health information for “healthcare operations”; i.e., to run your department.  I can also see the disclosure being made under the “incidental basis” exception.  No way was this a HIPAA violation.  I think we have to assume that the complainant is your employee or, as you seem to suspect, your boss who is also the Privacy Officer.   If you think otherwise, try to get in touch with the complainant and get an authorization from her for you to have disclosed her PHI to your staff/her co-employees. 

Unfortunately, the real issue here appears to be an attempt by the hospital to use breach of confidentiality to discharge you and save your high salary/upcoming pension plan vesting.  Sorry to have to say this!  You’ll need to check the Employment Handbook to see if the hospital has a right to suspend you without any progressive discipline steps.  To move immediately to suspension without pay instead of progressive discipline (e.g., counseling, written warning, etc.) further belies the hospital’s ill-intent.  I just don’t see how your action can be construed as “critical”.

Please don’t overlook the other fact that you are entitled to vacation pay that has accrued to your benefit, regardless of whether you resign or are fired.  What’s earned is earned.  Even if your Employee Handbook says otherwise, you are entitled to it, especially if you were wrongfully terminated. 

You need an attorney to help you with this – ASAP.  Please keep us posted and good luck!

Editor

Note:  We are happy to answer any questions you have regarding health care legal issues.  Of course all requests for information shall remain anonymous.  All letters are published for educational purposes only.  Legal advice and opinion can only be provided for upon individual consultation.

For more information, please Call or E-mail