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HIPAA - false allegation of disclosure


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Can an employee be terminated for making false allegations of HIPAA violations? Employee's spouse posted on social media that spouse's HIPAA rights had been violated by employer. Employer contacted employee to conduct investigation. Employee not cooperating. Employer wants to terminate employee. We are in a right-to-work state so we know we can terminate for any reason, but would like to ensure we are not violating any applicable law. The only thing I can think of is employee could claim discharge was retaliatory. Have no evidence that employer violated HIPAA. Any thoughts?

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Yikes! Since you cannot possibly present all the facts here, you should not trust any advice on your question from this Message Board, except this: Talk to your legal counsel.

I'm a retirement actuary. Nothing about my comments is intended or should be construed as investment, tax, legal or accounting advice. Occasionally, but not all the time, it might be reasonable to interpret my comments as actuarial or consulting advice.

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Tread carefully. Nowadays, an employer generally may not take adverse employment action against an employee because of an employee's actions if the employee's actions are based on what the employee reasonably believes to be a protected right, like HIPAA rights.

It is reasonable to expect a retaliation claim if the reason you fire someone is that they claimed that their HIPAA rights were violated. Even if you can prove that the rights were not violated, they can claim they were acting in good faith on what they believed were their protected rights, and the odds of a happy ending go downhill from there. An employer should not expect to be given deference in such cases.

The only good advice you'll get here is what Mr. Rigby says: talk to your legal counsel.

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Thanks for the replies - I am legal counsel for the employer. To complicate matters, the employer has been wanting to fire this employee for some time. According to him, he can substantiate the termination for a variety of reasons. Just bad luck that before he could terminate the employee, the HIPAA allegations were made. I know we can't prevent the employee from filing a retaliation claim, but I think we can present a valid reason for termination other than the HIPAA allegation. At this point we don't believe there was any reasonable, good faith belief that a HIPAA violation occurred - just an angry spouse venting on facebook. But it does cause the employer problems given that he wants to terminate the employee for other reasons. Does it matter that the allegations were made on social media and not to the employee's supervisor, the employer's privacy officer or a government agency, etc. (i.e. - not an "official" allegation)?

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Does it matter that the allegations were made on social media and not to the employee's supervisor, the employer's privacy officer or a government agency, etc. (i.e. - not an "official" allegation)?

This probably doesn't matter as far as HIPAA protections are concerned, since the company is now aware of the complaint. If there's a history of other cases where the company has required that complaints be made to a company official, that may count some, but that scenario is not likely.

As long as the employer has work-related reasons for firing the person and adequate documentation to show the problems and to show that the employee had been made aware of the probable consequences of the employee's continued poor performance, you have a chance of winning the retaliation claim case. But you already know all this.

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Depends on the facts of the case. In a March 19, 2009 ruling, the U.S. District Court for the Northern District of Texas recognized that the Texas Whistleblower Act prohibits health care organizations run by the State of Texas from retaliating against employees for making good faith complaints of violations of the Privacy Rules of the Health Insurance Portability Act ("HIPAA"), Nevertheless, the court dismissed the wrongful discharge lawsuit brought by a former Terrell State Hospital security guard who alleged he was wrongfully fired for complaining to the U.S. Department of Health and Human Services Office of Civil Rights (OCR) that the Hospital violated the HIPAA Privacy Rules because the plaintiff had failed to present sufficient proof that he was terminated in retaliation for filing a HIPAA complaint.


PensionPro, CPC, TGPC

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