HIPAA Impaired Providers and the ER - What Happens When Your Employee Becomes Your Patient?

Dentons Davis Brown

I was speaking this week at IAHIMA’s Annual Conference on the issues relating to HIPAA audits and recent updates from OCR and ONC. As part of my program we typically solicit questions prior to the presentation, most of which come in by email. One of these questions impacts upon both HIPAA and Employment law and is something that crops up fairly consistently. Specifically, what happens when your employee becomes your patient and drugs are involved?

Particularly for county hospitals or those in rural areas the emergency room may be the first choice for their own employees when problems arise. So what do you, as an employer, do when a nurse or other licensed provider shows up in the ER because of an issue where drugs have been involved? The answer to this question depends somewhat on the type of drugs involved, whether they are illegal or legal, but HIPAA is implicated in either scenario. It may also make a difference if the employee has simply made a passing visit in the ER verses being hospitalized for any period of time.

Example 1: A nurse Employee is seen at the ER and tests positive for illegal drugs, such as Cocaine or Methamphetamine. The next day the employee arrives at work and the nurse who had admitted the patient to the ER sees that she is there working and is extremely concerned about her ability to treat patients. Can this nurse report this employee to the manager? Under HIPAA the answer is no. Any information that you receive as a provider through your duties and responsibilities for the provision of healthcare is protected by HIPAA. It is patient confidential information and as such cannot be revealed to the manager. However, if the issue is based on illegal drug use, your duty as a license holder dealing with another licensee may kick in. Under Iowa law a licensee has a duty to report another licensee for the types of behavior that could lead to suspension or revocation of a license. Iowa Code 272C.9(2) Specifically under the Iowa Board of Nursing Rules, the Iowa Board of Nursing has the authority to suspend or revoke the license of a licensee who is involved in the unauthorized manufacture, possession, distribution, or use of a controlled substance. The nurse or other licensed provider would have an obligation to report the nurse who came into the ER under the influence of an illegal drug. Once the matter has been reported to the Iowa Board of Nursing this may kick in a commensurate duty for the nurse to tell the manager that she has reported something under the licensing rules. While this may fall within the public health or other exemptions under HIPAA there isn’t significant case law developed in this area. Additionally, the nurse who is the subject of the report typically has a duty under the policies and rules of the provider to immediately report any potential limitation on her license, including the investigation.

Example 2: The nurse employee reports to the ER due to an injury or issues involving pain. The nurse is prescribed a narcotic medication which the ER nurse thinks would dramatically and negatively impact upon her ability to provide patient care during her shift which is scheduled for the next day. Can the ER nurse tell the manager that the employee has been prescribed narcotics which may affect her ability to provide care? No. Under HIPAA, information that you obtain as an employee of a covered entity relating to patient care is not allowed to be disclosed to the employer. The employer in this instance just happens to be the healthcare provider but if the person who came into the ER worked at the local discount store or bait shop, you wouldn’t call the employer up and report to them that the employee had received narcotic medication. You are not allowed to provide the information which you received in the provision of care. However, if the nurse behaves erratically or inappropriately during her shift, you can observe these items and report this phenomenon to the manager. You cannot reveal your concerns regarding the prior prescribed narcotic medication but can address any observable issues which lead to concerns relating to patient care. An employee would need to be very careful in reporting these items as the assumption will be that he/she is basing it on the information that he/she obtained while providing care and therefore there is a strong potential that there will be a concern that a HIPAA violation has occurred.

Example 3: The employee reports in to the emergency room due to various issues and is subsequently hospitalized, while hospitalized it is either discovered that the employee has been utilizing illegal drugs or the employee is prescribed a narcotic medication for proposed hospitalization use. For the issues relating to illegal drugs the same concerns apply as listed in example 1. As a license holder, there is still an obligation to report the illegal drug use of the fellow license holder and this then becomes an issue for the Iowa Board of Nursing, or in the case of a physician the Iowa Board of Medicine.  Misuse of prescription drugs causes a similar analyses. For the post-hospitalization narcotic, you cannot report to the manager or supervisor that a narcotic prescription has been given or that you have concerns regarding this matter.  However, in this particular instance there has been at least an overnight hospitalization which would potentially kick in the Family and Medical Leave Act or other facility rules requiring a return-to-work medical certification.  In the event that the employee is hospitalized, the employer can always require return-to-work certification that addresses the essential functions of the job. If the provider has concerns, the provider should state that the employee has restrictions on the job or that the employee may need time off due to medication management or similar issues. It certainly doesn’t always work this way, with some providers simply writing whatever the employee would like them to put down on a return-to-work notice, but if there are in fact concerns, it would be hoped that the nurse or other person observing the issue would make these known to the provider, prior to the provider writing a return-to-work certification. Typically, as the employer you do not want to know the underlying reasons, cause or significant information but you do need to know enough to determine if the employee is safe to return to work, can perform the essential functions of the job and if any restrictions or accommodations may be needed.  

It is very difficult for many nurses to allow a colleague to return to work when that colleague has been utilizing illegal drugs, has had issues with alcohol or is on a narcotic medication that the nurse feels would impair job ability. Nurses by nature are attempting to protect their patients and provide the best possible care at all times. If they feel that care is compromised, it kicks in a strong sense of ethics and patient concerns. However, HIPAA prohibits the dissemination or reporting to an employer of these kinds of issues. If the employer was the local grocery store you would not call them and report it, the same is true for the hospital. Further, if we realized how many people are on pain medications, anti-anxiety drugs, anti-depressants and similar items which could impact their ability to perform the sensitive job functions it could potentially overwhelm the system. If you report one, you would have to report them all and that would be a significant proportion of many employee populations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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