Department of Employment and Economic Development File No. 30432843-3
Thomas F. Andrew, Aaron R. Bransky, Andrew & Bransky, P.A., Duluth, Minnesota (for relator)
Range Regional Health Services, Hibbing, Minnesota (respondent employer)
Lee B. Nelson, Department of Employment and Economic Development, St. Paul, Minnesota (for respondent department)
Considered and decided by Kirk, Presiding Judge; Kalitowski, Judge; and Chutich, Judge.
Relator Koneta Andrew challenges the unemployment-law judge's determination that she was ineligible for unemployment benefits because she was terminated for employment misconduct. Because we conclude that relator's conduct was not employment misconduct as defined in Minnesota Statutes section 268.095, subdivision 6 (2012), we reverse.
In 2004, Andrew began working at Range Regional Health Services (Range) as a licensed practical nurse. She worked as a nurse in the area of obstetrics and gynecology, providing nursing care for patients and assisting the physicians. In 2012, after conducting a random audit of patient records viewed by Range employees, Range discovered that Andrew had briefly accessed the medical records of four elderly men for whom she was not the assigned nurse. Range then terminated Andrew's employment for violating the Health Insurance Portability and Accountability Act of 1996 (HIPAA), a federal law designed in part to protect patient privacy. Andrew applied for unemployment benefits, and the Department of Employment and Economic Development found her ineligible. Andrew appealed, and an unemployment-law judge held a telephonic hearing.
At the hearing, Gina Prebeck, manager of Range's clinic nursing department, testified that Range discharged Andrew for three separate HIPAA violations: (1) Andrew's unpermitted access on four occasions to patients' medical records for which she was not the providing nurse; (2) a comment Andrew made to a patient regarding the pregnancy of a co-worker; and (3) Andrew's unpermitted access to her own medical records without first obtaining a release. The hearing focused primarily on the first two alleged reasons for termination.
Lynn Hachey, Range's human resources generalist, testified that Range has a broad policy that requires employees to view records only for a legitimate business purpose. Range employees are informed of this policy through a PowerPoint presentation shown to all employees upon hire and at an annual meeting to highlight the importance of adhering to HIPAA requirements. Range updated the 2012 version shown to all employees in March 2012. Andrew acknowledged that she had knowledge of Range's policy prohibiting access to patient records without a legitimate business purpose. The 2012 PowerPoint did not mention accessing one's own records as a HIPAA violation, however.
Concerning an employee's own medical records, Prebeck stated that Range also has an "organizational policy that [employees] do not look up our own medical records just to be looking them up. [Employees] need to follow the same process as everybody else for getting their information, meaning they have to go to medical records and get a release and follow protocol." Range did not produce the policy for the hearing; nor did it elaborate on the purpose for the policy. Andrew testified that the policy was never brought to her attention and that she never received a warning about accessing her own medical records. Further, in the eight years Andrew worked for Range, she never received a reprimand or any type of disciplinary action.
On January 17, 2013, the unemployment-law judge issued her findings of fact and decision that Andrew was ineligible for unemployment compensation. The unemployment-law judge credited Andrew's testimony concerning the first two reasons for termination—accessing other patients' records and a comment to a patient about a co-worker—and found no employment misconduct on these grounds. Specifically, the judge found that Andrew inadvertently accessed the medical reports of the male patients and looked at them for only one to two minutes before she realized her error and immediately logged off. But because the unemployment-law judge found that Andrew knew or had reason to know of the policy prohibiting employees from viewing ...