What To Do When HIPPA and OSHA Conflict

July 31st, 2007 Posted by Amelia

A thorny case in Paramus, New Jersey gives employers some guidance on what to do if HIPPA and OSHA regulations conflict.

A medical center recently reversed its suspension of a nurse after the U.S. Labor Department conducted a whistleblower investigation. The nurse was reinstated with full payment for past salary at the Bergen Regional Medical Center in Paramus.

The problem started when a nurse reported a violent workplace incident to her union, the Health Professionals and Allied Employees union (HPAE). The nurse named a patient who had assaulted her. The nurse was suspended for three days by her employer, who claimed that the report violated the patient’s right to confidential medical records.

The nurse, and eventually the U.S. Department of Labor, argued that the nurse was being unfairly discriminated against or punished for exercising her workplace health and safety rights. In this case, that would be the right not to be assaulted at work.

According to a recent study, nurses are as likely to be assaulted on the job as prison guards or policemen. Yet, all too often, nurses are told that being punched, kicked, spat upon and even attached with knives is simply “part of the job.” While a number of states, including Massachusetts, are taking measures to protect nurses, some employers lag behind.

“Our investigation found that this activity did not constitute a HIPAA violation because employees can report a threat of violence to a supervisor, union official or OSHA without violating HIPAA,” said Patricia K. Clark, OSHA’s regional administrator in New York, adding that the agency has published a fact sheet on the issue to prevent any future confusion.

HIPAA requires that medical facilities including doctors, hospitals and clinics protect the privacy of a patient’s medical records and information. Any person or organization that furnishes bills or is paid for healthcare is covered under the law, as are most employers. Under most circumstances, and individual must give written consent before their healthcare records can be shared. However, employees may disclose protected information when they are reporting conditions that pose a serious threat to patients, employees or the public.

In addition to reversing the suspension, the medical center agreed to reimburse the nurse’s full salary for the three-day suspension. The employer will also expunge any reference to the suspension from her personnel file.

With demand for healthcare workers and especially nurses reaching, an all-time high, the issue of violence in the workplace is gaining importance. Nurses in the emergency room and those in psychiatric wards are the most likely to be attacked.  Yet, many hospitals fail to protect employees, according to the Massachusetts Nursing Association. Many nurses are told to ignore attacks by patients, even when they result in potentially life-threatening situations. Others are discouraged from reporting attacks, and told that dealing with enraged, combative patients is simply part of the job.

Some states are taking measures to correct this problem. A bill currently before the Massachusetts House of Representatives would require health care providers to implement a comprehensive program to prevent workplace violence, including attacks against nurses. The bill would require that employees develop annual risk assessments and develop violence protection plans. It would also require workplaces to provide counseling for victims of violence.

Among those testifying at the hearing were several nurses who are recent victims of workplace violence. These include an emergency department nurse at St. Elizabeth’s Medical Center who was exposed to HIV and Hepatitis C when an intoxicated patient tried to punch her, dislodging an IV line. The nurse had to undergo a debilitating round of medication to prevent infection, which has left her sick, weak and depressed.

In another case, the relative of a patient threatened a nurse, telling her that he would be waiting in the parking lot after her shift. When the nurse reported the threats to the police over her supervisor’s objections, she was suspended for three days. At the nurse’s request, the police escorted her outside after her shift, where they found the assailant waiting near her car with a knife.

An Associate Professor at the University of Massachusetts, Craig Slatin, said nurses that are often subject to physical violence, racial slurs and threats from patients and the relatives of patients. “Managers don’t understand the seriousness of these issues and how they relate to the care of their workers,” he said.

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