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I have a staff who committed a HIPPA breach. My agency

I have a staff...

I have a staff who committed a HIPPA breach. My agency investigated and notified HIPPA and the clients. They have said they won’t notify CSWMFT board as the breach occurred as the client was taking FMLA for a work related broken ankle. Agency is saying filing with the board will be looked at as retaliatory. Is reporting a HIPPA breach and filing with my board mutually exclusive? My board is saying I have to file the complaint unless our agency attorney gives me a letter summing up their case as to why I can’t file. As of now all I have is a summation of why I can’t file by my boss. I am concerned the agency is looking out for themselves but less concerned about my obligation as supervisor.

Lawyer's Assistant: Was this discussed with a manager or HR? Or with a lawyer?

The agency lawyer was who gave my boss instructions to tell me not to file with the CSWMFT board. Yes HR is involved and following the lawyers lead. Their justification is the double protected status of the staff- FMLA/workers comp. the agency has decided not to discipline but use this as a training issue. This is a staff who has had a license for 20 years and knows better with repeated yearly HIPPA trainings.

Lawyer's Assistant: Is the workplace "at will" or union? Is the job hourly or salaried?

At will and salaried

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I just need to know if HIPPA workers comp or FMLA allows for or trumps the filing of the breach with the CSWMFT board.

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Answered in 6 minutes by:
3/28/2018
Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,136
Experience: Employment/Labor Law Litigation
Verified

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

(The system will automatically generate a phone call request to you. Unless I specifically state, during our discussion, that a phone call is possible, I intend to just use this chat format as I am not in a position to accept a phone call).

No, nothing in the either law trumps being able to make a report to the CSWMFT board. The agency is making a recommendation that is not based on any specific provision of a statute. You are perfectly correct is believing that you can file that notice with the board, because the offense occurred and the FMLA use is unrelated to the offense,.

However, their recommendation is based on the timing of this situation. This person was on FMLA. Shortly after they return from FMLA, you report an offense to the CSWMFT board. The temporal proximity alone is going to make it so that the employee can file a complaint with the Department of Labor, who will initiate an investigation. If someone else has ever had a HIPAA violation and they were not reported, but this person was, now you have a federal lawsuit based on disparate treatment.

Even then, I still think you'd win at a trial, but at what cost? It would cost tens of thousands of dollars to defend that allegation all the way through trial, if it went that far, and it could take literally years to resolve.

The agency is, understandably, wanting to avoid that concern and is making a recommendation on that basis.

If you have any further questions or other facts that you would like me to consider, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a three, a four or preferably a five star rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Please DON’T rate my service until after you have asked any follow up questions that you have, so that I have the best opportunity to earn all 5 stars. Also, feel free to request me in the future, if you have questions concerning a different matter.

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Customer reply replied 27 days ago
This person was also on corrective action due to improper handling of client data. She was going to be fired 3 days before her accident. Her file is well documented but again the timing was at play. Does this information alter your response in any way?

I stated in my first post that I am not accepting phone calls.

Your additional information doesn't change my response, because I didn't say that the report couldn't be sent. Again, there is no law saying that it can't be sent.

Your additional facts make it more likely to be able to prove that the basis for the decision to send the report was not her FMLA use, but it would do nothing to stop the employer from having to go through that process.

So again, the employer has every right to send the report, as long as they do so with open eyes. The employee can absolutely sue based on alleged FMLA retaliation. The additional facts make it more likely that the employer would prevail in such a suit, but there would be costs to defending that allegation.

The employer has to make a choice.

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Customer reply replied 27 days ago
thank you. I appreciate your feed back.

I have certainly recommended, when employers want to terminate someone and they have a legitimate basis for doing so, to go ahead in this similar situation.

I'm not telling you what to do here. I'm just giving you the information that you need to make the decision, with full disclosure.

The timing of the FMLA use is bad here. It makes anything you do appear to be retaliation. If you are committed to the action, then fine. Just know that it can result in the complaint against you, at which point you will have to present this defense to the allegation (all the documentation about the HIPAA issue), and that even then, it could continue to a Federal lawsuit if some fact comes up during the investigation which is not good for you.

There is risk, but that is true by even having employees.

Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,136
Experience: Employment/Labor Law Litigation
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Allen M., Esq. and 87 other Employment Law Specialists are ready to help you
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Joycelaw
Joycelaw, Attorney
Category: Employment Law
Satisfied Customers: 114
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Customer reply replied 27 days ago
Thanks. I get it. I will attempt to get the lawyer to give me a letter for my file stating their position in the event one of the exposed clients makes a complaint to the CSWMFT board and they investigate why this wasn’t reported.

That's a very good idea.

Take care.

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Customer reply replied 27 days ago
Thanks again for your help.
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Allen M., Esq.
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Satisfied Customers: 20,136
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Experience: Employment/Labor Law Litigation

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