VA Nurse Whistleblower Fights Disciplinary Action for Using Patient Information

A Veterans Administration (VA) nurse who reported neglectful care at her facility to her lawyer says she was put on suspension and demoted for violating patient privacy protocols. Recent HITECH-HIPAA Omnibus Final Rule protections for healthcare whistleblowers, however, could strengthen the nurse’s defense.

The allegations waged by Valerie Riviello are one of several VA whistleblower cases being investigated by the US Office of Special Counsel. Riviello’s problems began when she worked in the psychiatric ward of Albany Stratton VA Medical Center in Albany, NY, where she has worked for 28 years. Riviello told the New York Post that she and her fellow nurses objected to a physician’s orders to keep a female patient with a history of sexual trauma and multiple medical problems in restraints for an extended period of time last November. Riviello maintains that the patient was kept in restraints for 49 consecutive hours in a separate admission in February. She says physicians failed to re-evaluate the patient during the 49-hour period as required in cases involving restraints.

When Riviello was reprimanded for releasing the patient from the restraints, for “failure to follow the patient’s plan of care,” she sought the counsel of a law firm specializing in cases for federal employees. Two weeks after seeking help from an attorney, in an attempt to defend against disciplinary action, Riviello was placed on a 30-day suspension without pay. The suspension, according to Riviello’s supervisors, was activated because she released patient information to her legal team. She later learned that the medical center had turned over 250 pages of the same patient’s records to authorities. Riviello was then given a desk job without nursing duties and was instructed to stay away from patients.

 

Help From HIPAA

An update last year to the HIPAA Omnibus Final Rule permits workforce member disclosures of protected health information to proper oversight authorities provided that: “The workforce member or business associate believes in good faith that the covered entity has engaged in conduct that is unlawful or otherwise violates professional or clinical standards, or that the care, services, or conditions provided by the covered entity potentially endangers one or more patients, workers, or the public…” (See section 164.502 of the Final Rule).

The inclusion of this clause in the rule is intended to encourage healthcare workforce members to come forward. As the Journal reported in March, even though there are federal laws to protect individuals from whistleblower retaliation, workforce members and the organizations that employ them can pay an emotional or financial price even if a formal investigation clears them of any wrongdoing.

 

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