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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 92589
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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My boss printed my xray report without my consent and called

Customer Question

My boss printed my xray report without my consent and called me in her office to discuss it with me. I was floored. It was reported and investigated and when. I was asked about by our HIPPA officer she
asked did I feel like it was malicous I said no but I felt violated. She broke hospital policy which she
should have been fired for but was not.
Submitted: 1 year ago.
Category: Legal
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

I'm sorry to hear about your situation. Unfortunately, HIPAA does not apply to employers, but only "covered entities". Employers are generally not subject to HIPAA. This includes employers that are in the health care field and have access to the types of records that are generally protected by HIPAA. Here's the Code of Federal Regulations provision: http://www.gpo.gov/fdsys/pkg/CFR-2007-title45-vol1/pdf/CFR-2007-title45-vol1-sec160-103.pdf




Page 4 says: (2) Protected health information excludes individually identifiable health information in:
(i) Education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. 1232g;
(ii) Records described at 20 U.S.C.1232g(a)(4)(B)(iv); and
(iii) Employment records held by a covered entity in its role as employer.


ScottyMacEsq :

Now to the point that these records were obtained from your medical provider, you could complain against your doctor, etc... that disclosed these records without your consent. But to the extent that they were used by your boss, even against the written policies in place, that would not be a HIPAA violation, because HIPAA records held by a covered entity (such as a hospital, doctor's office, etc...) but in its role as employer, rather than provider, would not be covered by HIPAA, and would not be subject to a HIPAA complaint.

ScottyMacEsq :

As for the policy and enforcement of that policy, that's generally up to the discretion of the employer.

ScottyMacEsq :

If you suffer an "adverse employment decision" contrary to the written policies, you can often have a claim against them under a "pseudo contract" theory.

ScottyMacEsq :

But if you don't actually have any concrete "damages" (such as lost wages, etc...) to point to, unfortunately that is not going to be something that you can sustain a legal action based upon.

ScottyMacEsq :

Now I certainly would suggest documenting everything, to the extent that they dismissed your complaints and did not comply with written policies, etc... because if they do try to enforce those policies against you in the future, you can point to "unequal application" of the policies, and claim that any adverse employment decision against you would thus be unjust as a result.

ScottyMacEsq :

I know that this is probably not what you want to hear, but it is the law. I hope that it clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please rate this answer either a 3, 4, or 5 (good or better). Please note that I do not get any credit for this answer unless and until you rate it that way. Thank you, XXXXX XXXXX good luck to you!

ScottyMacEsq :

I'm sorry you feel that this is bad service. Can you explain why you feel that way?

ScottyMacEsq :

Please don't "shoot the messenger" here. I don't have any control over what the law says, but can only give you a fair and unbiased answer regarding it.

ScottyMacEsq :

I understand that you think that this is "bad service". Again, please let me know why you feel that way. I believe that I answered your question, but if there's something that you didn't understand, etc... please let me know so that I can address that.

ScottyMacEsq :

You don't have to keep rating it as "bad". And PLEASE don't rate it as bad because you don't like the answer. Again, I don't have control over the law or your specific situation. I can only tell you the facts.

ScottyMacEsq :

Hello?

ScottyMacEsq :

Are you still there?

ScottyMacEsq :

Again, you don't have to keep rating this as "bad service". It only counts once. But I do ask that you give me the chance to answer any issues that you have regarding it.

ScottyMacEsq :

Please let me know WHY you feel that this is "bad service" so I can try to earn your satisfaction.

Customer: Okay this is a hospital that I work at she happens to be a registered nurse in the department that I work and I did not ask her to look at my report she had no right to pull up my report that is a policy violation and a hippo violation according to our hospital other people have been fired For looking at similar things
ScottyMacEsq :

Was that a question?

ScottyMacEsq :

You've already indicated that my service to you was bad, four times. I'm sorry that you feel that way and did not give me a chance to clear up your misunderstandings or confusion as to your issue. I will opt out and allow another expert to assist you.

Customer: Question statement that I would like an answer to she violated policy other people have been fired for doing the same issue still has her job
Customer: I tried to reply but for whatever reason your system would not let me but now it is allowing me to chat with you
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. Your previous expert has opted out, but has provided you the correct law.

I have a different opinion here. The previous expert was correct in that TYPICALLY an employer is not a covered entity. HOWEVER, when the employer is a healthcare provider, they are held to a higher duty than a regular employee and they are bound under HIPAA to restrict access to the employee's personal health information pursuant to the HIPAA regulations. The privacy rules exempt employee records, but NOT personal health information of a hospital employee from the hospital employer accessing that information for non-HIPAA related reasons, such as employment reasons.

I believe that you should indeed file a complaint with the US Department of Health and Hospitals as they are the sole entity with authority to investigate and punish under HIPAA and there is no personal right of action under HIPAA. You can also have grounds to sue the employer and the employee for invasion of privacy for violating the confidentiality of your personal health information under your state's laws.




I truly aim to please you as a customer, but please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. Please consider that I am answering the question or question that is posed in your posting based upon my reading of your post and sometimes misunderstandings can occur. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered.

Kindly remember the ONLY WAY experts receive any credit at all for spending time with customers is if you click on OK, GOOD or EXCELLENT SERVICE even though you have made a deposit or are a subscription customer. YOU MUST COMPLETE THE RATING FOR THE EXPERT TO RECEIVE ANY CREDIT, if not the site keeps your money on deposit.

Also remember, sometimes the law does not support what we want it to support, but that is not the fault of the person answering the question, so please be courteous.

Customer: replied 1 year ago.
Okay can you please clarify if other employees That were fired For violating the same policy Have any claims to their job since this employee was not fired For violating the exact same policy
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

No, other employees who violated a rule or a law do not have job claims if some other employee violates a rule and were not filed as the courts look at these situations independently and as "two wrongs do not make it right." If this employee violated HIPPA then you need to pursue a complaint to Department of Health and you can pursue your suit under state law against the employer and the employee, but that is separate from whatever other employees have done in the past.
Customer: replied 1 year ago.
Is there a web site I can go to for this?
Expert:  Law Educator, Esq. replied 1 year ago.
A website to file a HIPAA complaint, that would be http://www.hhs.gov/ocr/privacy/hipaa/complaints/index.html

You would need a local attorney to file suit for invasion of privacy and confidentiality of medical records.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 92589
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Law Educator, Esq. and 7 other Legal Specialists are ready to help you
Customer: replied 1 year ago.
Ok thank you very much.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you.

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Law Educator, Esq.
Law Educator, Esq.
Attorney At Law
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JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law