Lost job over HIPAA violation, what is employment potential?

[RockyMountainHigh]

Hi a relative of mine was an RN. She just lost her job over a HIPAA violation. She took a cellphone picture of a patient and sent it to a friend. She later had a falling out with the friend and he threatened to forward the picture to the hospital. She went to her supervisors and told them about this threat, police were called to deal with the friend. She was given the option to quit or be fired and quit.

Clearly this was a serious mistake on her part but I'm not looking for lectures, I'm trying to determine what options are available to her now. Number 1 is whether it's possible to fight her termination. One important fact is that there is no actual evidence of the HIPAA violation; the friend threatened to send the picture but never did, for all we know he doesn't even have the picture anymore and was just bluffing. She has long since deleted it. So the hospital undertook this action simply on her admission of a violation. The question is is this acceptable or do they need evidence?

She is going to put in applications at other hospitals nearby but I'm wondering what it will be like looking for work with this in her history. In her favor she can say she quit, and perhaps give some reasons other than the HIPAA violation why she did so. But I'm certain if any potential employers call the hospital they will give the real reason why she left.

So what is the overall job market like for RNs right now? and, does anyone know anything about getting another nursing job after a HIPAA violation? is it impossible or will some still consider her if she's honest. Finally can anyone suggest other options for her? What would be good jobs for someone with her education and experience to pursue if she has difficulty finding work as a nurse again?

Thanks everyone for your help, I don't want to say that this is a desperate situation but it's pretty bad, she was the sole breadwinner for her family and things are going to become very difficult very soon if she is not able to secure another job.

[nurse grace RN, BSN]

I am aware of people being fired over HIPAA violations and others who have had lawsuits with judgements involving jail time. HIPAA guidelines are getting even stricter so I agree that this nurse must be mature enough to realize the mistake and never do it again.

How do you know of the patient was hurt? Was it a humorous picture from a funny dx? a very good looking person? a gruesome wound? If the patient did not give permission how do you know they were not hurt? and if they gave permission did they approve forwarding the picture to others? I know I wouldn't want someone to take my picture and forward it ti friends if I were sick in the hospital.

When I was a nursing student one facility I trained at took pictures of patient wounds on admission--- with three documents the patient had to sign in advance!!!! So facilities do not take HIPAA lightly.

I wish her luck in finding gainful employment but it may be in a less attractive setting than she was hoping for.

[Jolie, BSN]

What would possess a professional nurse to whip out a cell phone and photograph a patient?

If there was a justifiable reason to photograph a patient, and consent had been obtained, a hospital-owned and controlled camera wold be used in order to maintain control over the disposition of the picture.

I hate to over-generalize, but anyone foolish enough to use a personal cell phone to photograph a patient (or any part thereof) lacks the good sense and judgement to be responsible for the well-being of others.

This isn't the beach or a family reunion, for goodness sakes!

[bosslpn]

is getting terminated for a hipaa violation a reportable offense????:redpinkhe

[dolphinbeauty09]

I have to agree with some of the ladies here.. In no way was this harmless. You do not know that it wasn't harmful to the patient because you haven't questioned the patient. I am not yet a nurse (I start nursing school in August), but I have worked in the medical field and understand HIPAA policies. I think that to NOT reveal details of the HIPAA violation to future employers is morally wrong. I believe that any future employer should have the knowledge of the offense. Similar to how on any application, you need to list felonies and misdemeanors. Only difference between her situation and that is that she wasn't charged. I think about the fact that if I was a patient in the hospital, would I want to be treated by someone who violated the privacy of others? NO! At the very least, she needs to be put through some more SERIOUS HIPAA training!!

[roser13, ASN, RN]

is getting terminated for a hipaa violation a reportable offense????:redpinkhe

Reportable to whom?

[bosslpn]

reportable to the bon............

[Freedom42]

a former employer can say virtually anything s/he wants about you, provided it's true. as for hipaa violations resulting in "lawsuits" and "jail time," hipaa is virtually never prosecuted, and even if it were, it's a civil offense, not a crime, meaning no jail time results. the government relies on self-policing by hospitals to enforce the law.

from the privacy rights clearinghouse:

often a potential employer will contact an applicant's past employers. a former boss can say anything [truthful] about your performance. however, most employers have a policy to only confirm dates of employment, final salary, and other limited information. california law prohibits employers from intentionally interfering with former employees' attempts to find jobs by giving out false or misleading references. (california labor code 1050)

under california law and the laws of many other states, employees have a right to review their own personnel files and make copies of documents they have signed. if you are a state or federal employee, your personnel file is protected under the california information practices act or the federal privacy act of 1974 and can only be disclosed under limited circumstances. (california civil code 56.20; california labor code 432, 1198.5; 5 usc 552a)

jobs such as truck driver positions fall under regulations of the federal department of transportation. employers are required to accurately respond to an inquiry from a prospective employer about whether you took a drug test, refused a drug test, or tested positive in a drug test with the former or current employer. (49 cfr 40.25, 49 cfr 382.413.

[color=#1c26ce]www.fmcsa.dot.gov/rulesregs/fmcsrhome.htm

[elkpark]

As for HIPAA violations resulting in "lawsuits" and "jail time," HIPAA is virtually never prosecuted, and even if it were, it's a civil offense, not a crime, meaning no jail time results. The government relies on self-policing by hospitals to enforce the law.

Not sure where you got that info from. While it's true that HIPAA violations rarely get to the point of formal prosecution (individuals usually just get fired promptly by their healthcare employers), the law includes both civil (against facilities) and criminal (against individuals) penalties:

From Summary of the HIPAA Privacy Rule --

"Criminal Penalties. A person who knowingly obtains or discloses individually identifiable health information in violation of the Privacy Rule may face a criminal penalty of up to $50,000 and up to one-year imprisonment. The criminal penalties increase to $100,000 and up to five years imprisonment if the wrongful conduct involves false pretenses, and to $250,000 and up to 10 years imprisonment if the wrongful conduct involves the intent to sell, transfer, or use identifiable health information for commercial advantage, personal gain or malicious harm. The Department of Justice is responsible for criminal prosecutions under the Privacy Rule."

[bagladyrn, RN]

A former employer can say virtually anything s/he wants about you, provided it's true. As for HIPAA violations resulting in "lawsuits" and "jail time," HIPAA is virtually never prosecuted, and even if it were, it's a civil offense, not a crime, meaning no jail time results. The government relies on self-policing by hospitals to enforce the law.

From the Privacy Rights Clearinghouse:

Don't be too confident about HIPAA violations not being prosecuted. There was a recent case of someone given jail time for a HIPAA violation.

See the article under the Nursing News section of the forum (I'd post a link to it but I don't know how)

I actually feel rather intolerant toward the person the OP wrote about. I believe that anyone guilty of such an egregious violation SHOULD have difficulty in finding another nursing job. Perhaps they need to spend some time in a position where they don't have the opportunity to violate someone else in such a manner.

[NRSKarenRN, BSN, RN]

[color=#3366cc]how to respond to a reference check request: responding when ...

e6. reference check guidelines

prospective and former employers share a common interest in exchanging job reference information. a

prospective employer seeks to validate the job performance and qualifications of an applicant prior to hiring. in addition, the prospective employer has a duty to protect its employees and customers from potential injuries caused by employees whom the employer knew or should have known posed a risk or harm to others. this duty is breached when an employer fails to seek references prior to making employment decisions, and the employer may be held liable for negligent hiring2.

a former (or current) employer provides employment references to assist former employees in obtaining future employment, and also does so in good faith with the hope that, in return, s/he will receive an honest evaluation from other employers when hiring new employees. the courts recognize that employers do not have any duty to disclose information about their employees. however, if an employer chooses to provide a reference or recommendation, the reference giver must include factual negative information that may be material to the applicant’s fitness for employment in addition to any positive information.

campus managers and supervisors who provide employment references on current or former employees must be aware that untrue, incomplete, or misleading information may cause a different liability -

negligent referral. the court in randi m. v. livingston union school district, 1995 cal. app. lexis 1230 (dec. 15, 1995), found that, “a statement that contains only favorable matters and omits all reference to unfavorable matters is as much a false representation as if all the facts stated were untrue.”

defamation vs. negligent referral

reference-checking has taken on new importance with the dramatic increase in workplace violence. former employers can be sued for negligent misrepresentation or negligent referral if the employee is involved in some incident at the new workplace that might have been predicted based on prior behavior. negligent referral or misrepresentation includes the failure to disclose complete and accurate information about former employees. on the other hand, current employers increasingly face the possibility of being sued for negligent hiring if they fail to adequately check the backgrounds of their employees and an employee behaves in some inappropriate manner.

under "negligent referral"., one could disclose that employee comitted hipaa violation when that is a reaon for termination, especially if serious breach. nursing has a code of professional ethics --your friend also breached by this unprofessional conduct. intentional breaches of patient privacy such as taking photograph of patient without consent, may be reportable to boards of nursing with license sanctions to license termination depending on seriousness of breech.

can an rn lose his or her nursing license over a hipaa violation? --yes!

nurse pleads guilty to hipaa violation -- surrendered her license.

unprofessional conduct.

s

d nursing board - complaints process

kentucky: board of nursing - overview

1st jail time awarded for hipaa violation accessing/reading medical records

[Freedom42]

Don't be too confident about HIPAA violations not being prosecuted. There was a recent case of someone given jail time for a HIPAA violation.

See the article under the Nursing News section of the forum (I'd post a link to it but I don't know how)

I actually feel rather intolerant toward the person the OP wrote about. I believe that anyone guilty of such an egregious violation SHOULD have difficulty in finding another nursing job. Perhaps they need to spend some time in a position where they don't have the opportunity to violate someone else in such a manner.

As of 2007, of 336 HIPAA complaints, four resulted in criminal prosecutions. These were complaints related not to release of health care information, but for fraudulent use of health care information; in other words, use of information for personal financial gain. These individuals were prosecuted in conjunction with other crimes, such as using the information to obtain credit card info and commit theft.

[elkpark]

As of 2007, of 336 HIPAA complaints, four resulted in criminal prosecutions. These were complaints related not to release of health care information, but for fraudulent use of health care information; in other words, use of information for personal financial gain. These individuals were prosecuted in conjunction with other crimes, such as using the information to obtain credit card info and commit theft.

While I agree that HIPAA violations v. rarely get to the point of actual prosecution, you're not suggesting, are you, that that means that violation of client confidentiality isn't a serious matter (because there's little chance of getting prosecuted)???