Falsely Accused of a HIPAA Violation

[Mantibob]

I am a 45 year old nursing student beginning my second year of my ADN. I was recently told by an RN at the hospital where I have my clinicals of a curious use of HIPAA. She stated that hospital administration and even coworkers use false HIPPA violation accusations to fire health care workers, even nurses, that they do not like. She explained that with anonymous HIPAA accusations they do not have to present any evidence or identify the accuser and they avoid any potential legal ramifications from unwarranted termination. They don't even have to tell the accused of what he/she has done. It's quick, easy, no fuss no muss.

Being a citizen of the U.S., if the above is true, I find this deplorable and a little bit scary. Please tell me that the nurse was exaggerating. What ever happened to the constitutional right to confront your accusers?! How about at least knowing what your accused of?!

Some questions:

With HIPAA can you be accused anonymously?

Can you be brought before a hospital HIPAA Committee without knowing or ever being told what the accusation is?

Does the HIPAA Committee have the power to terminate your employment or recommend your termination even if you contest the accusation?

Does the Hospital HIPAA Committee have the power to terminate your employment, or recommend termination, based on the anonymous accusation only, even though there is no other evidence of a HIPAA violation?

Where can I find a description of the rights of the accused in the HIPAA regulations?

Where can I find a definition of the powers of the hospital HIPAA Committee in the HIPAA regulations?

Is there a way to appeal the decision of the HIPAA Committee? What authority is there above the hospital HIPAA Committee?

Your answers and comments will be greatly appreciated.

[traumaRUs, MSN, APRN]

You are right Mantibob - ignorance of the law is no excuse for breaking the law.

[Agnus]

Actually that is not entirely true, even in the land of AZ with its wonderful employee protections -- not . A employer cannot fire you for any reason that is legally protected from wrongful termination, i.e., you are a woman, for you race, etc. And in most states cannot fire you if it is a public policy violation (i.e., whistleblower protection). And if they don't give you a reason and you suspect this is why you can file a complaint.

http://www.lrims.com/FAQatwill.htm

http://www.bls.gov/opub/mlr/2001/01/art1full.pdf

The bls website breaks down your rights by state.

You are correct. I did not mention these particular issues as I did not seem them as directly germane to this patricular OP's question.

Yes, there is such a thing as wrongful termination if it is policy (public or company) if it is covered anywhere in writing even employee hand books (with or without disclaimers), if it is covered in a federal, state, county or city laws, or if they do not treat everyone the same then you have not only a civil case but you may have a criminal case against the employer.

[Havin' A Party!, ASN, RN]

... maybe we should be concerned with something that has the potential for the loss of our license...

Agree. Thought we were.

Hence all the time we've already put into this discussion. No doubt more is needed.

[Havin' A Party!, ASN, RN]

... ignorance of the law is no excuse for breaking the law.

Of course. But, unfortunately, these are the risks we -- and all professionals in an industry in constant flux -- face.

Unless we subscribe to a legal update service (which furnishes daily mods), we'll never be on top of the situation totally. BTW, such services are costly.

[RN4NICU, LPN, LVN]

My thoughts. At-will employment does not offer protection from being released from your position, even on a "bogus" charge. You can pursue wrongful termination, but it seems to me a roll of the dice.

However, OP, you seem more concerned with the implications such an accusation may have for one's nursing career, i.e. loss of license. An understandable concern. At this point, if the hospital was just trying to find a reason to get rid of someone, I would think their own legal affairs department would have a stroke if they filed a complaint to the BON. THAT action crosses the line from being a shady employment practice (which in some states seems to be strictly an employer-employee issue) to being slander, libel, defamation of character, and "blackballing" - which is illegal in many states.

Would it surprise me to find out hospitals are using HIPAA to get rid of employees they don't want around - not one bit. I've seen excellent, experienced (highly paid) nurses released out of thin air over smaller-time BS than this (like not signing the back of a med sheet - med was given, MAR was initialled, other MARs in the chart were signed, but nurse did not sign the back of a new MAR, just initialled in the box. This nurse was not counselled or written up -- she was FIRED). Do I think that the hospitals would take the legal liability upon themselves to pursue legal action on a false accusation against a nurse's license - I really do not. Could you imagine the PR nightmare for them if and when the local news got hold of THAT story?? Plus the punitive damages they would owe the nurse. Seems too risky (and too expensive in possible litigation) for the money grubbing entities most hospitals are. But, then again, these are just my thoughts. If the violation could not be proven, I am not sure one can predict whose side the court would take.

[snowfreeze, BSN, RN]

Can you be fired from any job on the word of someone else. Yes. Can someone sue you for anything they want to. Yes. Can you disprove these accusations in court. Yes. Are you planning to be a good nurse who documents what you do. Yes. Will you find bad co-workers. Yes. Will you become a competent nurse after some experience. I certainly hope so.

Good luck with what I have found to be a very rewarding career.

[Mantibob]

Good points - well taken. Maybe I getting a little carried away with all this.

Can you be fired from any job on the word of someone else. Yes. Can someone sue you for anything they want to. Yes. Can you disprove these accusations in court. Yes. Are you planning to be a good nurse who documents what you do. Yes. Will you find bad co-workers. Yes. Will you become a competent nurse after some experience. I certainly hope so.

Good luck with what I have found to be a very rewarding career.

[Mantibob]

Good points

My thoughts. At-will employment does not offer protection from being released from your position, even on a "bogus" charge. You can pursue wrongful termination, but it seems to me a roll of the dice.

However, OP, you seem more concerned with the implications such an accusation may have for one's nursing career, i.e. loss of license. An understandable concern. At this point, if the hospital was just trying to find a reason to get rid of someone, I would think their own legal affairs department would have a stroke if they filed a complaint to the BON. THAT action crosses the line from being a shady employment practice (which in some states seems to be strictly an employer-employee issue) to being slander, libel, defamation of character, and "blackballing" - which is illegal in many states.

Would it surprise me to find out hospitals are using HIPAA to get rid of employees they don't want around - not one bit. I've seen excellent, experienced (highly paid) nurses released out of thin air over smaller-time BS than this (like not signing the back of a med sheet - med was given, MAR was initialled, other MARs in the chart were signed, but nurse did not sign the back of a new MAR, just initialled in the box. This nurse was not counselled or written up -- she was FIRED). Do I think that the hospitals would take the legal liability upon themselves to pursue legal action on a false accusation against a nurse's license - I really do not. Could you imagine the PR nightmare for them if and when the local news got hold of THAT story?? Plus the punitive damages they would owe the nurse. Seems too risky (and too expensive in possible litigation) for the money grubbing entities most hospitals are. But, then again, these are just my thoughts. If the violation could not be proven, I am not sure one can predict whose side the court would take.

[ayndim]

Sorry if you think I am rude. How would you prove that "if they say that you violated HIPPA but you suspect they really fired you because you are disabled, over forty, a male/female, a whistleblower in some states or other protected class" when you cant even prove that the HIPAA accusation is false because you are never allowed to see the original report or are even told what the accustion was? This seems critical to defending your position.

They would have to provide the documentation of your termination. Your lawyer could have it subpeoned (sp) and any investigator worth their salt (the fed agencies investigate fair employee law violations, I believe) would ask to see it to. So eventually, the accusation would be known to you.

[Havin' A Party!, ASN, RN]

My thoughts...

Excellent thoughts. Thanks for posting!

[Havin' A Party!, ASN, RN]

Good points...

Agree.

[CHATSDALE]

the problem here is not the facility, yes they can get rid of you at anytime but iif you are doing your job and they still have a need for someone in that position then they are not likelly to fire you just because they "don't like" you...

a horse of another color is a fellow worker who doesn't like and has not the authority to fire you, then you are vunerable to accusations which can't really be proved, sorta like he said/she said.situation...facility to protect itself might let you go in order to protect themselves....just a thought...guess what i am a pessimist