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Is it an HIPAA violation for my former employer to release my outpatient drug treatment info to the prosecuting attorney in an unrelated incident?

Monday January 13, 2014
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Question:

Dear Nancy,

I was arrested for a crime I did not commit. The prosecuting attorney accessed my personnel files from a previous employer, which included info about me testing positive for marijuana during a random drug screen. I did not lose my job but had to attend an outpatient drug treatment program to keep my job. They called it a medical disability leave, and I received disability insurance at that time.

As this was called a medical problem, how can my former employer release this info to the prosecuting attorney? Isn't this a HIPAA violation? I did not sign anything giving access to my medical information.

Jennifer



Dear Nancy replies:

Dear Jennifer,

You did not give any details about the crime you were charged with so it is difficult to speculate what possible exceptions to HIPAA might apply to your situation. However, do be aware that HIPAA does have many exceptions included in its Privacy Rule.

Two of those exceptions might be applicable to your situation. Since you wrote the prosecuting attorney accessed your personnel file, the access may have been court ordered or as a result of a court-ordered subpoena. A second possible exception is when a covered entity allows access to Personal Health Information because it, in good faith, believes evidence of a crime was committed on the entity's presence. You can learn more about the exceptions to the Privacy Rule at
http://www.hhs.gov/ocr/privacy/hipaa/administrative/privacyrule/. Click on "Frequently Asked Questions" in the menu on the left hand side of the screen. Then select the category for Disclosures for Law Enforcement in the Select A Category drop-down menu.

I also want to clarify another point. You indicated the drug test results were located in your personnel file. Such reports are often kept in a separate file with, say, the EAP program or employee health clinic, so that no one, including those in HR, has access to such information except those who need to know the information.

Should you believe your HIPAA rights were violated, seeking a consultation with a nurse attorney or other attorney in your state who works with healthcare employees would be helpful.

Sincerely,
Nancy


Sincerely, Nancy


Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.