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I have a legal discrimination case against my company. My

I have a legal discrimination...
I have a legal discrimination case against my company.
My attorney requested my personnel file and Medical file.

The company never requested me authorization to disclose my medical file, but disclose it. Are they in violation of HIPAA law?

What rights I have, if any?
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Answered in 1 minute by:
7/17/2013
ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 17,513
Experience: Licensed Texas General Practice Attorney
Verified

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", so unless your employer is in the healthcare business, the disclosure of your medical records without your consent would not be a violation of HIPAA because your employer would not be bound by HIPAA. Normally, an employer will only deal with covered entities, not actually be one. However, if an employer has any kind of health clinic operations available to employees, or provides a self-insured health plan for employees, or acts as the intermediary between its employees and health care providers, it will find itself handling the kind of PHI that is protected by the HIPAA privacy rule.


 

ScottyMacEsq :

The HIPAA privacy rule applies to health plans, health care clearinghouses, and health care providers. It applies to employers only to the extent that they somehow operate in one or more of those capacities. The same standards apply to covered entities in both the public and private sectors.


 

ScottyMacEsq :

But they don't apply to employers.

ScottyMacEsq :

I know this is probably not what you wanted to hear, but it is the law. I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

My employer offers the employee's the benefit of bringing an Medicine Doctor to the Plant premises, based on a contract between the Medical Clinic and the Employer. The Doctor provides services to all employees who request it. I understand that the medical records are protected in cabinets with keys and only the Nurse (Employer's employee) or the Medical Doctor (contracted professional) has access to the employees' medical records. I understand that it was the Human Resource Manager who ordered to release my medical file, without the Doctor's permission. Does that makes any difference?

Customer:

Thanks.

ScottyMacEsq :

Unfortunately, no. While you might have a suit based upon some written privacy policy that the employer had, the fact that it was not the doctor or nurse that disclosed these, but some other entity not covered by HIPAA means that there would not be a HIPAA claim.

Customer:

Thanks for your feed-back.

ScottyMacEsq :

My pleasure.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 17,513
Experience: Licensed Texas General Practice Attorney
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Customer reply replied 4 years ago


Another doubt, regarding the prior topic:


 


The company is intermediary between the employees and the medical provider: pays the Doctor, and coordinates the medical appointments with the employees and the Nurse assist the Doctor if necessary. Being the Nurse a company employee, does it means that they may look my medical file at any time and probably take actions based on what they see (ex. fire the employee because it has a serious health condition which will increase the medical plan fees)?


 


I am concerned because they did not know if I had authorize my attorney or who was my attorney. It means that any attorney may contract my company and ask for my medical file without any consequences?

If the nurse or doctor gave the company this, without your authorization, that would be a HIPAA violation, but the complaint would be against the doctor / nurse themselves, not the company (since the company is not a covered entity, even though it offers a company doctor / company nurse).

But even with a HIPAA violation, you have no right to sue under HIPAA for violations of your privacy. In other words, you do not have a "private right of action." Only the HHS or the U.S. Department of Justice has the authority to file an action for violations of the Privacy Rule. All you can do is complain to the one who violates your privacy or to the HHS. However, you may be able to sue under state law using the HIPAA Privacy Rule to establish the appropriate standard of care.

Again, I wish I could tell you otherwise, but the law is the law. I do hope it clears things up anyway.
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Customer reply replied 4 years ago

What is HHS?

Department of Health and Human Services. It has the sole authority to investigate / prosecute HIPAA claims. There is no private cause of action (although I certainly think that there should be).
ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 17,513
Experience: Licensed Texas General Practice Attorney
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