Can I get unemployment if I am fired for a HIPAA violation

by Anonymous

I am in the home health care business and work for a company. I had a prior client for 3 years full time. His family loved me and I got raises each year and good evaluations from my company. He passed on and I have been collecting Unemployment for a few months. I was given another client for only two 6 hour days a week and collecting partial UC. I mentioned to my new client how much my old client loved to go to the park and feed the geese and perhaps the new client would like to go sometimes. I may have even mentioned his name.


MY employer said I violated the HIPAA laws by doing what I did. I had permission from the family of my prior client to talk of him if I wanted to. I only spoke highly of him.

They have not fired me yet, but I feel it is coming I think they want to get rid of me so they don't have to pay UC anymore for me. I have to drive an hour one way to get to work and I am actually losing money now only working 2 days a week but was told I couldn't turn it down.



Hi Anonymous,

I'm having a hard time understanding how talking to a current client about taking a former client to feed geese and if they'd like to do the same is a HIPAA violation.

I thought HIPAA dealt with medical privacy. If they fire you for this, I think your focus needs to be on proving your action wasn't a HIPPA violation. AMA HIPAA

Exactly how did this become an issue? It seems like a fairly innocuous statement and I guess I'm wondering how anyone even found out about it.

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I get your point ....
by: Chris - Unemployment-Tips.com

I truly do get the point you're making. I do understand why violating HIPAA is a serious concern for both employers and employees in the workplace .. and like I hope I conveyed, to me personally. I do take my right to privacy on medical issues, as well as my other rights in this country, very personally.

However, regardless if cause for termination is more serious, such as a HIPAA violation can be, or the cause is a much more run of the mill discharge for unacceptable attendance, and I become aware at some point it was the employer who ignored another important federal law, (let's say FMLA), all goes to the point of this website.

It's important to me, to let employees know they not only have rights, but an inherent responsibility, if they choose to initiate a right, including applying for unemployment benefits, to plan on exercising that right, with a basic understanding of what a state is seeking from them, information-wise. Information asked for and provided, should at minimum be truthful, but also relevant and with specificity to the assigned burden of proving cause.

Which is just to say I think things could work better for some people who end up denied, if they had only been made aware of their strategic position in the process, which is to know how they plan to rebut the burden of misconduct, or just know that burden is assigned to an employer to prove misconduct, or just know the origin of most all definitions of work related misconduct .. whether a discharge is for anything, including a HIPAA violation .. not yet proven, or rebutted .. as far as I might know.

Boynton Cab Company v. Neubeck (1941), 237 Wis. 249, 296 NW 636

"The term 'misconduct' as used in (the disqualification provision) is limited to conduct evincing such willful or wanton disregard of an employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employee's duties and obligations to his employer. On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances or good faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

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HIPAA Is a Red Line
by: Anonymous

Chris,

You are correct in the fact that the claimant in this situation would be able to argue the reasons or explanations behind the violation of HIPAA to unemployment. The bottom line, assuming that the home health aide was trained in HIPAA, there isn't room in the law for "I made a mistake" or "I didn't realize" or even the popular " I didn't know I'd lose my job over a HIPAA violation."

People in healthcare are trained about HIPAA. They are trained about the rules. They are trained that they can and probably will lose their jobs for a HIPAA violation. Yes, its that serious. Even a thief gets to explain their side at unemployment hearings but rarely win since the same explanations as above rarely work.

The bottom line is that good intentions are not likely to overcome a HIPAA violation. It was a careless move on the claimant's part and made worse since it was in writing and then made even worse than that by losing the paper.

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HIPAA is a Red Line?
by: Chris - Unemployment-Tips.com

I agree, HIPAA violations should be a red line for any company, or non-profit in the health industry to avoid.

Not doing everything possible to avoid only the risk of financial civil liability posed when an employee crosses that red line is unacceptable to even me .. a potential patient.

So, I absolutely understand and agree, employers have not only a duty to train their employees, but to provide continuing training to keep all healthcare workers, abreast of changes to the law and the subsequent internal employer rule changes to deal with those changes, or the changes made to an employer's system, used to insure patient privacy .. on a recurring basis.

However, I take issue with this idea "A HIPAA violation is no different than stealing from the company. Its just a different section of law."

That is a broad and sweeping statement that ignores facts that may, or may not be proven, going to intent, surrounding cause for termination of an individual.

HIPAA violations are of a federal law and I'm not aware of any instance where HIPAA law is specifically mentioned as exempted from the fair and impartial application of a state's unemployment laws to not even afford the opportunity of an a discharged health worker to try to prove the mistake wasn't their fault.

Unless we all forget, there are employers in this country .. including those in the health industry, that do a poor job of training employees especially on the intricacies of how employees should do things, so the employer can remain compliant to HIPAA laws. Some by simply failing to outline a set of sufficient internal rules to follow to be compliant in the workplace for the purpose of safeguarding patients right to privacy.

Chris

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HIPAA Is a Red Line
by: Anonymous

In the health care industry HIPAA is a major issue. I know that in NYS all home health aides are trained in the HIPAA regulations. Its drummed in that patient information is private. Period. Full Stop.

Your intent is not relevant. How little you violated HIPAA is not relevant. These are Federal laws with potentially major consequences. Many states have their own version of HIPAA as well. You violated HIPAA and yes, your employer absolutely has the right to terminate you even the very first time it happens.

I am guessing that the company your work for has an employee manual. If its like most companies in the healthcare industry there probably is a section about HIPAA and the ramifications of violating it.

As to unemployment, the issue then turns to did the company have a good reason to terminate you? The answer is yes. A HIPAA violation is no different than stealing from the company. Its just a different section of law. Be happy that losing unemployment is all that happens to you. HIPAA violations can also be assessed significant fines by the government.


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For: Need Answers
by: Chris - Unemployment-Tips.com

I can only offer one answer .. I don't know if you can collect unemployment for the reason you were fired, as it relates to a violation of HIPAA.

Also, know that I don't know, what imn stands for, but what you did reveal raises questions for me, regarding whether your mistake was a one time inadvertent mistake made while performing your job in good faith, or if it might of been the second, or third time the employer had warned you about making inadvertent mistakes, to effectively allow the employer to prove one of the words found in the definition of misconduct, such as carelessness, negligence, for me to feel okay to make an informed call about your ability to receive benefits, because I believe it was a one-time inadvertent and unintentional mistake not rising to the definition of what work misconduct reads like when an employer has the burden of proof .. to prove misconduct to deny unemployment benefits.

Chris-Unemployment-Tips.com

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Need anwers
by: Anonymous

I mistakenly put a paper with residents name on them with imn number in my pocket, went to lunch at a different hospital and it fell out my pocket then hospital called them but didn't call state can I get unemployment if fired?

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