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Release of Random Drug Testing Results Raise HIPAA Challenge

Fire Lieutenant Shawn Baptist was fired last year from the Zephyrhills, Florida Fire Department after he allegedly failed a random drug test on February 23, 2009. He is challenging the termination as well as the results of the test through grievance arbitration. In addition he filed suit last week alleging the public release of his medical tests violated HIPAA and state medical privacy laws.

Baptist claims that both Fire Chief Keith Williams and City Manager Steve Spina at various times told the media that he was fired because he failed a random drug test.

Spina is quoted as saying "When you are a public safety officer and you get fired for a certain reason, that's the public's business…. There was no intent to violate his privacy… But when you work for a public agency in a high-profile position, those things are public record."

Apparently Spina is not familiar with HIPAA, which even protects celebrities and public figures. He further seems to confuse the law related to medical confidentiality with the unrelated legal principle of  defamation, which sets a higher standard when dealing with public figures. Finally, he is wrong about state public record laws, which universally provide an exception to the public's right to know when it comes to the confidentiality of medical information.

And did I happen to mention that Baptist is also the President of the Zephyrhills Firefighter Union?  How much that is impacting the case is hard to say, but the parties are reported to be at an impasse in negotiations. As a fire lieutenant, Baptist makes $34,534 a year.

According to Baptist "If they wanted to make a comment that I was terminated, that's one thing…. But to say why, that's against federal and state law." I’d say that Baptist has a much better handle on the law than Spina.

For more on the case.

And more.   And More.

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Comments - Add Yours

  • John K. Murphy

    Check out this case
    Beard v. City of Chicago
    The United States District Court for the Northern District of Illinois rejected the defendant’s argument that certain medical records were privileged from production under three different statutory and regulatory schemes, including HIPAA. The plaintiff in that case, Ms. Beard, was an African-American woman who suffered from major depression. After she was terminated from her employment as a paramedic with the city of Chicago Fire Department (the “Department”), Beard filed a federal lawsuit in which she alleged discrimination on the basis of disability, race, and gender.
    During discovery, Beard sought the production of documents related to leaves of absence taken by other Department paramedics due to mental health or substance abuse issues. She argued that she and such other paramedics were similarly situated and that their treatment by the Department was discoverable in connection with her discrimination claims. The defendant, the city of Chicago, objected to production of the documents on grounds that, among other things, such disclosure was barred by HIPAA. The court concluded that it was not.
    In the Department’s possession were documents that, although generated in a variety of ways, all related to employees’ fitness to return to work. For example, the Department maintained medical records generated by outside medical personnel, either in the course of an employee’s treatment or at the request of the Department, to document an employee’s progress. The Department also possessed records of evaluations to assess employees’ fitness to return to work performed by outside physicians, and by physicians and other medical personnel employed by the Department in the medical section of its personnel division. Employees sent by the Department to an outside provider for such an evaluation signed a consent form in which they acknowledged that there is no treatment relationship with the evaluating physician and that the information provided by the physician is not confidential.
    The court concluded that, for several reasons, HIPAA did not bar production of any of the records in the Department’s possession. First, the court determined that the Department was not a “covered entity” to which HIPAA’s privacy protections applied. There apparently having been no suggestion that the Department was either a “health plan” or a “healthcare clearinghouse,” the court focused on whether the Department was a “healthcare provider” within the meaning of the regulations. The court concluded that it was “questionable” that it was because it did not appear that “the Department’s medical section actually provides medical care; it evaluates medical conditions (and pays for fitness for return to duty evaluations) not for the purpose of treatment, but for the purpose of determining fitness to return to work.”5 The court held that, in any event, there was no evidence that the Department transmitted health information in electronic form and, therefore, it did not meet the definition of a “covered entity” under the regulations.
    Next, the court held that even if the Department qualified as a covered entity under HIPAA, the information at issue was not “protected health information” to which HIPAA’s provisions applied. Noting that the definition of protected health information specifically excludes health information maintained in employment records held by a covered entity in its role as employer, the court concluded, “Plainly, the only reason that the Department maintains any records of an employee’s substance abuse or mental health treatment in connection with a [leave of absence] is because of the Department’s role as an employer.” Finally, the court noted that the HIPAA regulations allow a covered entity to disclose protected health information in a judicial or administrative proceeding, either in response to court order or, in the absence of an order, if reasonable efforts had been made (1) to insure that individuals who are the subject of protected health information receive notice of the request and an opportunity to object or (2) to seek a qualified protective order.
    It should be noted that the court went on to hold that although HIPAA did not bar production of the records, at least some of the records were protected by the psychotherapist-patient privilege, which neither of the parties had addressed in their arguments.

  • http://profile.typepad.com/6p0120a62b3877970c Curt Varone

    Correct. But the court in Beard did not allow the city to release confidential medical information to the media simply because it involved a “public employee”. That is the difference. It is one thing to release confidential medical information when a court orders you to – and another to hold a press conference to discuss it!

  • John K. Murphy

    This will be an intersting one to follow