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John, Employment Lawyer
Category: Employment Law
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Experience:  Exclusively practice labor and employment law.
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I own a MN based home health care agency. In about an hour

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I own a MN based home health care agency. In about an hour I will be on the phone for an unemployment appeal hearing for an employee that was denied unemployment benefits. The employee intends to have three of our patients to on the call to testify on behalf of the employee.

I have submitted documents to MN Unemployment stating that I believe it is a violation of HIPPA and other privacy regulations to have the patients on the call. I have also stated that having the patients on the call is a breach of the Employment Agreement executed by the employee.

I was told my the Unemployment office that I will have to explain this to the judge at the beginning of the call.

Do I have the right to object to the hearing because of these issues, and request that the judge evaluate the issues and reschedule the hearing? Should the judge allow the patients to testify? If the judge refuses and wants to go forward with the hearing, I will probably choose not to participate. The judge would then likely award unemployment benefits to the employee. In that case, it is likely that MN Unemployment would allow me to appeal the decision?
Submitted: 11 months ago.
Category: Employment Law
Expert:  John replied 11 months ago.
Hi, thanks for submitting your question today. My name is XXXXX XXXXX I’m happy to assist you with your question today.

To best answer your question I'll break it down into the several parts.


Do I have the right to object to the hearing because of these issues, and request that the judge evaluate the issues and reschedule the hearing? -- ANSWER --Absolutely you have that right, but I suspect the judge will go through with the hearing in any event unless you have compelling legal authority that the evidence should not be heard. I'm not aware of any authority that merely calling patients as a witness is a violation of HIPAA - what of their protected health information has been exposed, especially if they voluntarily are making themselves available (they can waive their HIPAA rights in any event)? How is calling patients to testify a breach of the employment agreement.? If you have clear legal authority for these you will have the opportunity to explain them at the hearing.

Should the judge allow the patients to testify? - ANSWER -- If they have information relevant to the proceeding and are not otherwise in violation of HIPAA (i.e., they are not being forced to reveal their protected health information).

If the judge refuses and wants to go forward with the hearing, I will probably choose not to participate. The judge would then likely award unemployment benefits to the employee because it will be a one-sided hearing. In that case, it is likely that MN Unemployment would allow me to appeal the decision? -- ANSWER-- You always have the right to appeal. But you have to be aware that an appeal will only address whether the evidence on the record was substantiated by material evidence. Basically if you do not present your side of the matter in the hearing, then you cannot present any alternate facts in appeal. You'd be left with only your legal argument that these patients should not have been allowed to testify.

I wouldn't recommend you refuse to participate in the hearing even if you think it unfair. Most likely this judge will allow the hearing to occur. Address the factual and legal matters the best you can and preserve any right to appeal you have. That's the best you can do.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, XXXXX XXXXX wish you all the best with this matter.

Customer: replied 11 months ago.

For Judicial and Admininstrative Hearings, the HIPPA regulations state that "covered entities may disclose protected health information in a judicial or administrative proceeding if the request for the information is through an order from a court or administrative tribunal. Such information may also be disclosed in response to a subpoena or other lawful process if certain assurances regarding notice to the individual or a protective order are provided"


 


I don't believe that patients that have been called to testify by a former employee meet the standards of this regulation. Do you agree ?


 


Also, the patients that are being testified are vunerable adults.


 


 

Expert:  John replied 11 months ago.
Jeff,

Responding to your follow-up questions -

I don't believe that patients that have been called to testify by a former employee meet the standards of this regulation. Do you agree ? We'd need to know exactly what type of information he plans to get from them. For example if he wants to ask them to testify that he arrived at work on time on x date - that's not protected health information -that's just regular non-PHI. If he wants them to reveal what medications, dosage etc then that would be PHI that falls under the protection of HIPAA and for which there'd be a need for such court order etc.

 

Also, the patients that are being testified are vulnerable adults. -- This really goes to whether the patients can knowingly waive their HIPAA rights, assuming that is what they are being asked to do. Or whether they are competent to testify in any hearing. Those would be your two bases to object to their testimony.

John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 2869
Experience: Exclusively practice labor and employment law.
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