When HIPAA Allows Whistleblowers to Use Medical Records

What happens when a whistleblower uses confidential medical records from work to prove that her employer is making false claims to Medicare or another government healthcare program?  The answer depends on what the whistleblower does with the information.

The Health Insurance Portability and Accountability Act (HIPAA) provides that private medical records and information may be disclosed if the following criteria are met:

First, you must be a “workforce member” or a “business associate” of the employer.  A “workforce member” includes an employee, volunteer, trainee, or other person under the control of the employer, whether or not you are paid.  A “business associate” includes independent contractors, consultants, and other non-employees who provide legal, actuarial, accounting, consulting, data aggregation, management, administrative, accreditation, or financial services involving the use or disclosure of protected health information.

Second, you must have a good faith belief that the employer “has engaged in conduct that is unlawful or otherwise violates professional or clinical standards, or that the care, services, or conditions provided by [the employer] potentially endangers one or more patients, workers, or the public.”

Third, the disclosure may only be made to an appropriate person.  Appropriate persons are either:

(A)  A health oversight agency or public health authority authorized by law to investigate or otherwise oversee the relevant conduct or conditions of the employer or to an appropriate health care accreditation organization for the purpose of reporting the allegation of failure to meet professional standards or misconduct by the employer; or

(B)  An attorney retained by or on behalf of the workforce member or business associate for the purpose of determining the  legal options of the workforce member or business associate with regard to the unlawful, unprofessional or potentially dangerous conduct.

If you have information that false claims are being made to Medicare, Medicaid, or another government program, you should consult with an experienced lawyer immediately.  To schedule a free and confidential consultation by telephone or in person, call my office today at (917) 652-6504 or click here to communicate with me via email.

John Howley
New York, New York

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