HIPAA violation and future employment opportunities

allnurses Guide · Dec 4, 2018

Chare,
What do you mean the employer is not required to accept the resignation?
Employers cannot fire you after you tender resignation.
The employer does have to accept the resignation.

The employer absolutely can fire you instead of letting you resign. It may be largely a matter of semantics in some ways, but it matters in how your leaving them is communicated after the fact. If they plan to fire you anyway and you "beat them to the punch", its still going to go down as a termination. Termination for HIPAA violation will be "for cause", meaning the offender will not be eligible for unemployment benefits due to having willfully broken the law and willfully violating company policy. There are a couple of ways in which this matters to the employer. The biggest one is in showing they took this privacy breach seriously and handled it promptly and decisively. No way will they accept a resignation, unless the OP is a higher up or exceptionally well thought of.

JKL33 · Dec 4, 2018

If you read around a bit, I'm not sure either of these ideas about resignation are completely correct.

If you are an at-will employee, you certainly can resign effective immediately - that is the very nature of such an employment agreement. Either party can terminate at any time for any reason. There is no "refusing to accept" that - there is no aspect of law that allows the employer the legal means to refuse to accept the resignation of an at-will employee. And when you tender it, it is tendered. The employer doesn't get to decide whether they will accept that just as the employee can't refuse to accept a legal termination.

However. Practical purposes/understanding is another matter. If you resign effective immediately in order to pre-empt likely termination, well, you've resigned and your employer is free to continue their internal processes that are in line with a termination. They are free to inform future enquirers that you resigned while under investigation or while being considered for termination if that is true. They are free to permanently sever the current relationship and disallow future relationships with you (list your status within their company as not eligible for rehire).

The examples in posted links are addressing whether an employer may decline to allow someone to continue to work for them after the person has tendered a resignation/notice. No, they don't have to allow that. If someone gives 2 weeks' notice and expects to be allowed to work out those two weeks, the employer is free to say no thanks in an at-will situation. So in that regard they can "terminate" things even if/after the employee has tendered a future date of resignation (which is not the same thing as having resigned effective immediately - which is a done deal).

Meriwhen, ASN, BSN, MSN, RN · Dec 4, 2018

Hi,
I am currently under iinvestigation for a HIPAA violation at my facility. This was a one time occurrence, I had a friend in the hospital which I work at whom I hadn't heard from and was worried about so I quickly clicked her chart one night to ensure she was ok since I hadn't heard from her. She is aware I did this, this isn't anything I was trying to hide from her. (Please no nasty comments, as I've seen many people like to leave). I know what I did was wrong and have learned from this. I am currently 7 months pregnant and the stress this has been causing me is unmeasurable.
My question is, are all HIPAA violations reported to the board or some entity that is made public knowledge for future employers to find? I'm asking because I am considering resigning before they terminate me, since I am almost certain that is going to be the outcome. I feel since it was such a small scale violation it won't be reported, however I haven't been able to find any information on this online. Resigning always seems the better option, especially if this violation won't be made public for anyone to find out.
Thanks!

1. Consider this a lesson learned the hard way. Next time, do not access your friend's PHI without her having signed a ROI authorizing providers to discuss her care with you, and even then, you getting this information through the proper channels, i.e., from her providers and not by clicking in her EMR.

2. This may or may not be reported to your state BON. We have no way of knowing that. Rest assured that if it is reported to the BON, you will know about it as the BON will let you know they are investigating. If that happens, I strongly suggest you have an attorney to help you as the BON is not the nurse's friend...and yes, disciplinary action is public knowledge. You would need a lawyer to help minimize the damage.

3. Whether you are sacked or resign first, the fact is that future employers may still learn about this when they contact this employer to verify your employment. That is because, contrary to popular rumor, employers are not just limited to sharing only dates of employment and rehire status when it comes to verifying your employment. With a few exceptions that are covered by some state laws, employers can share any thing about your employment there provided that it is fact. You are/were being investigated for a HIPAA violation--that is a fact. That can be shared with the next employer if they chose to do so.

And don't forget the unofficial word-of-mouth, because nursing is a small world. You'd be surprised who knows who and where. And it's no violation for someone at your old job to tell their friend at your potential new job about this nurse they just fired for looking in her friend's EMR...

I sincerely wish you the best of luck in getting past this.

chacha82, ADN, BSN · Dec 4, 2018

Real talk, not being nasty. Why did you not just text your friend?

Angeljho, MSN, NP · Dec 4, 2018

I'm sorry that this happened to you. Unfortunately we live in a time where things like this are blown out of proportion for the sake of healthcare politics. Hopefully this gets resolved with a minor penalty. In the future, try talking to your friend -- as a friend -- if you're concerned.

RickyRescueRN, BSN, RN · Dec 4, 2018

As a Legal Nurse Consultant, I would strongly recommend that you get an attorney and do so promptly. This is a very serious offense and your employer will need to report it to the State BON. This is also a federal issue, and typically the fines are substantial. The only way you can get through this relatively unscathed is to have a knowledgeable attorney represent you. Best of luck. I trust that many others will learn from this unfortunate situation.

amoLucia · Dec 5, 2018

Also attorneys will most likely tell you to avoid using social media to discuss any details re this situation.

Kooky Korky, BSN, RN · Dec 5, 2018

I have no advice for you, OP, but you have received lots of good advice from others.

It is nearly incredible to see how extremely serious privacy is considered today. Years back, that was not the case. This thread is a very good piece of advice to anyone who didn't realize how serious HIPAA is.

Best wishes, OP. Keep us updated.

Pre.Nurse_tobe, ADN, RN · Dec 5, 2018

P.S. A friend in nursing school was thrown out for this. He answered a question about the admission of a neighbor. Nothing more.

Just curious about this situation. What do you mean "he answered a question"???

Meriwhen, ASN, BSN, MSN, RN · Dec 5, 2018

It is nearly incredible to see how extremely serious privacy is considered today. Years back, that was not the case. This thread is a very good piece of advice to anyone who didn't realize how serious HIPAA is.

In the 1990s, before HIPAA had come to be, my mother had been hospitalized in some small-town hospital about 150 miles away from where I currently was. According to my dad, she didn't want me or my sister to know she was in the hospital. I was able to call the hospital and without so much more than telling them who I was (and not having to prove it in any way), was able to speak to her providers and get a detailed update on her condition and treatment...despite her not wanting me to know.

Those days are long gone. Now nurses get fired, fined, and disciplined for doing far less than that.

Like it or not, they're not kidding around when it comes to HIPAA.

LoveMyRNlife · Dec 6, 2018

I am curious as to why you chose to look into her chart instead of going to her room to speak to her directly? If you are friends and she isn't upset about you accessing her chart,then I would assume you knew what room she was in. Not trying to be snarky, just a genuine question into why you chose something that was easily avoided.

Lisacar130 · Dec 6, 2018

Boy OK people throwing you under the bus over here. First, resigning really won't help you because they can report you to the BON anyway. Trust me on that. I am a nurse in recovery, caught diverting controlled substances and had to report my own self to the BON. I had a hearing 3 years ago with the BON and still have an active and clean license because I was graciously offered an alternative to discipline recovery program. Anyway, I go to recovery meetings with fellow nurses in recovery and have heard it all as far as being fired and reported to the BON (for drugs/alcohol).

Quitting does not save you from being reported whatsoever.

It is very possible they will just fire you and not report you, however.

They might not even fire you.

I can't say this is 100% always the case, but at least in my area hospitals literally only confirm dates of employment and title held during reference checks. I know of many nurses in my recovery group who were fired and even arrested for diverting and not one of them had a problem putting their old employer on their resume/references because like I said, in my area at least the hospitals HR policy only allows dates of employment and title held to be given out for a reference check. The exception to this is only if it is another affiliated hospital... then they will say if you are "rehireable" or not... and quitting vs being fired won't change the "rehireable" status. So basically if you are fired you would have to look for work outside of whatever system you currently work for.

Getting fired has not negatively impacted any of the nurses I know from my group getting a job, but getting in trouble with the BON has if they decide on any form of public discipline.

If they do report you, you will likely have a long time before the actual hearing and nothing will happen to your license until then. You could wait even a year or longer because the BONs from most states are backed up. In the meantime, your license is clean and you can get another job while waiting a BON hearing (worst case scenario because they might not report you).

If it were me, I would stick it out to see if they fire me or not, as I see no benefit to quitting vs being fired. That is what I personally would do. But I do recommend calling lawyers who specialize in nurse licenses in your state for further advise.