Risk of Termination - HIPPA Violation for looking up Megan's Law Information?

[ahardinjr]

My wife is a volunteer coordinator. She visits a patient to make him with a volunteer who is to help him. After the visit she finds out from a co-worker that he is a registered *** offender and that he performed a lewd sexual action in front of one of the company's social workers two days prior.

She then asks her manager if they should inform the volunteer and the manager says no.

She then goes home and looks him up on a Megan's law website and confirm he is a *** offender and he has three records.

She then tells her co-worker who he performed the lewd acts that he is indeed a registered *** offender as a safety concern for both herself and her co-worker.

The next day, her manager pulls her into her office saying she violated HIPPA by using his name to look up his Megan's law information. Her manager also said that what her co-worker (the head social worker) said is hearsay.

I talked to my buddy who is an FBI agent and he say the he doesn't think it is a HIPPA violation and instead a completely legal safety concern that my wife informed. Moreover, she did not disclose any medical information or PII that was not public (Megan's law) to the co-worker whom he performed lewd acts on.

Her manager is adamant that she violated HIPPA and my wife is concerned her work is going to fire her. I would like some insight and suggestions regarding this and what we should do.

BTW - we live in California.

 

[Betty3]

It's HIPAA (not HIPPA). I don't see a HIPAA violation since no medical information was released. You can hold for other replies.

 

[cbg]

It doesn't have to have been a HIPAA violation for them to fire her.

 

[ahardinjr]

I understand at-will employment and the employer being able to fire her for whatever reason, but does the employer knowing he is a registered sex offender and he just performed a lewd sexual on a co-worker constitute a safety concern for the other employees and volunteers? If it is a safety concern, would be terminated constitute a potential case for wrongful termination?

 

[Betty3]

It doesn't have to have been a HIPAA violation for them to fire her.

I agree with that but I don't see a HIPAA violation.

 

[cbg]

Why do you think it is a safety concern?

 

[ahardinjr]

My wife told me that management placed a posting for all employees to read stating that the patient displayed inappropriate behaviors and they should report it if it happens again; however, this was posted after my wife visited the patient.

This tells me they view it as a safety concern, but did not notify my wife.

 

[cbg]

Do you understand what the laws about safety concerns are referring to?

 

[ahardinjr]

Do you understand what the laws about safety concerns are referring to?

No I don't; that is why I am asking. Does my wife's work knowingly letting her visit a sex offender who acted out on a co-worker just days prior constitute a work safety issue?

It's HIPAA (not HIPPA). I don't see a HIPAA violation since no medical information was released.

My wife's work is saying it is a HIPAA violation because now that they officially know he is a sex offender, he was removed from the long-term care facility, they are having a hard time placing him, and he is at home with a reduced quality of medical care.

They also said it is HIPAA because she wouldn't of had known his name to look it up if she did not work there.

My wife's argument is that they already knew he was a sex offender before she ever looked him up via Megan's law. He verbally admitted it to the head social worker and sexually acted out in front of another employee. Moreover, my wife says law enforcement was involved. My assumption is that they would run his name during the investigation and that would unequivocally show he is a registered sex offender.

What is interesting is they are saying what he head social worker told my wife is hearsay even though she was told directly from the patient. Also, hearing from her co-worker friend that he acted out against her is hearsay as well and it wasn't officially confirmed until she looked him up - so they are pinning a HIPAA violation on my wife. But my wife is saying she thought it was official known documented information when it came from the head social worker.

My wife is also saying that from a safety perspective of him acting out to another employee she had the write to look him up to see what his past sexual crimes were since she and her volunteer has to visit him.

It doesn't have to have been a HIPAA violation for them to fire her.

If they want to terminate my wife for looking him up, that is fine; we just don't want a HIPAA violation pinned on her.

 

[cbg]

I explained in the other thread where we've been discussing this (though you probably haven't seen it yet) that no, the laws addressing safety concerns do NOT apply to this situation. There are no OSHA regulations regarding workplace violence or sexual harassment.

There are privacy issues involved here as well. If the guy had acted out only two days earlier, HR and management were probably already involved and investigating. But even though being on the sex offenders registry by definition makes the information public, that's quite a different thing than broadcasting all over the workplace, "Joe Smith is a sex offender - watch yourself with him!" How is anyone supposed to work effectively with Joe Smith after that?

As for "pinning a HIPAA violation on her", she is free to tell her side of the story to any prospective employer who may question her. But the employer is entitled to present his view of the matter, even if he is mistaken.

 

[ahardinjr]

Thanks for the information and clarifying there is no safety issue.

So my wife is not the one who gossiped and broadcasted that the patient is a sex offender around the office - the head social worker did. She stated that he was and also gossiped to several employees about the lewd act incident. That is why my wife looked him up afterwards and told the co-worker that he accosted of his previous record. The co-worker that he sexual accosted then told the rest of the social workers of his record. So I don't see how this is a privacy issue that my wife caused; it is a privacy issue that the head social worker caused.

Anyways, regarding HIPAA, we consulted a couple of lawyers, they stated she did not violate HIPAA and recommended my wife discuss with HR the fact that her work never trained her on HIPAA, my wife did not try to break HIPAA intentionally and would like to resolve the situation proactively and request HIPAA training from her work. Hopefully she will be able to smooth things over as her work record there is excellent - this is the only incident she has ever had.

 

[cbg]

I'm sorry, I didn't mean to say that your wife caused a privacy issue. I'm saying that warning everyone the way your wife wanted them to do could cause a privacy issue. Even if not in a legally-violated-privacy issue, just because the law does not prohibit an announcement of his status does not mean it is a wise thing to do.

And I don't think anyone here agreed that she violated HIPAA - in fact, I think we all agreed that she did not. What you don't seem to be grasping is that she can still be disciplined, up to and including firing, EVEN IF HIPAA was not violated. While there is nothing to lose by trying the lawyers' suggestions, I do hope they didn't lead you to believe that she has legal recourse if the employer does not give her HIPAA training or if they fire her. Because I don't think she does. If they disagree, I would be extremely interested to hear on what legal basis they think so.

 

[ahardinjr]

I'm sorry, I didn't mean to say that your wife caused a privacy issue. I'm saying that warning everyone the way your wife wanted them to do could cause a privacy issue. Even if not in a legally-violated-privacy issue, just because the law does not prohibit an announcement of his status does not mean it is a wise thing to do.

And I don't think anyone here agreed that she violated HIPAA - in fact, I think we all agreed that she did not. What you don't seem to be grasping is that she can still be disciplined, up to and including firing, EVEN IF HIPAA was not violated. While there is nothing to lose by trying the lawyers' suggestions, I do hope they didn't lead you to believe that she has legal recourse if the employer does not give her HIPAA training or if they fire her. Because I don't think she does. If they disagree, I would be extremely interested to hear on what legal basis they think so.

Oh, I didn't take it that way; I understand what you are saying in regards to the privacy issue regarding the patient. It is really interesting how everyone was gossiping and freely discussing the registered sex offender and lewd act incident amongst other co-workers in the office (privacy out the door), but the minute my wife looked him up on Megan's law her manager is blaming everything on her.

I understand there is really no legal recourse regarding the lack of HIPAA training; it was just a recommendation to try to smooth the issue over via my wife not knowing HIPAA and she would like to prevent any future issue by proactively seeking out HIPAA training. With at-will employment, we understand my wife doesn't really have any recourse.

On a side note, my wife's manager told my wife that she did not know what Megan's law is and that it doesn't matter anyways - because my wife didn't have the right to look the patient up. A bit of an ignorant statement on her manager's part.

My wife is writing up her account of everything and how she feels it is not a HIPAA violation to give to her manger and HR and to see if HR will do anything about her manager trying to stick a HIPAA violation on my wife. If they still wants to terminate her employment, she is fine with that.

 

[army judge]

Oh, I didn't take it that way; I understand what you are saying in regards to the privacy issue regarding the patient. It is really interesting how everyone was gossiping and freely discussing the registered sex offender and lewd act incident amongst other co-workers in the office (privacy out the door), but the minute my wife looked him up on Megan's law her manager is blaming everything on her.

I understand there is really no legal recourse regarding the lack of HIPAA training; it was just a recommendation to try to smooth the issue over via my wife not knowing HIPAA and she would like to prevent any future issue by proactively seeking out HIPAA training. With at-will employment, we understand my wife doesn't really have any recourse.

On a side note, my wife's manager told my wife that she did not know what Megan's law is and that it doesn't matter anyways - because my wife didn't have the right to look the patient up. A bit of an ignorant statement on her manager's part.

My wife is writing up her account of everything and how she feels it is not a HIPAA violation to give to her manger and HR and to see if HR will do anything about her manager trying to stick a HIPAA violation on my wife. If they still wants to terminate her employment, she is fine with that.

It's often best NOT to pull the sleeping tiger's tail. If I were your wife, I'd say nothing, do nothing, and just keep on doing my job. In the future, never blab things you learn. You can't protect others, because you usually end up hurting yourself.

 

[ahardinjr]

Thanks for all the advice. My wife talked to the HR director this morning wanting to smooth the issue over and HR is siding with my wife and told her not to worry. Said this is the first time they have dealt with a patient like this and its a learning lesson and mistakes were made across the board. HR said my wife's manager should have supported my wife and worked through the issue rather than put the blame on her. HR said she'd be talking to my wife's manager to resolve the problem.

 

[cbg]

That's a good resolution, then. Thanks for following up.