In a case addressing the Family Medical Leave Act (FMLA) that directly implicates the privacy rules under the Health Insurance Portability and Accountability Act (HIPAA), Pacosa v. Kaiser Foundation Health Plan of the Northwest, the Portland Division of the United States District Court of Oregon awarded summary judgment against a physician assistant who claimed he was discharged in retaliation for taking FMLA leave. While the court primarily focused on the boundaries of what constitutes FMLA retaliation, the case serves as a good example of the limits healthcare companies can place on employee access to available protected health information and enforcement mechanisms for addressing violations of such access.

Frank Pacosa was a physician assistant for Kaiser Foundation Health Plan of the Northwest in Portland, Oregon. He alleged that he took intermittent leave under the FMLA for a period of 2001 to 2008 for purposes of caring for his wife’s clinical depression. While employed, Pacosa signed a number of confidentiality agreements, which prohibited him from accessing his own health records or those health records of his family or friends on Kaiser Permanente’s proprietary medical records system unless he had specific authorization from the patient and the access was approved. An additional confidentiality policy that he signed and had training on prohibited him, as an employee, from accessing any protected health information records except where related to his job.

In 2008, Kaiser Permanente’s Compliance Department received a series of phone calls from Pacosa’s wife, who informed it that Pacosa had accessed her medical records without authorization and that he was using the information to obtain a restraining order against her. The Compliance Department’s investigation revealed that Pacosa had accessed his wife’s records without authorization, and further accessed and edited his daughter’s records as if he was the treating medical provider, all while he was on alleged FMLA leave.

Kaiser Permanente determined that Pacosa, who at one time served on the Confidentiality Committee and Health Information Management Committee, improperly and with intent of personal gain, accessed the protected health information of his wife and daughter, violating its confidentiality policies. Kaiser Permanente terminated Pacosa’s employment on October 30, 2008.

Pacosa sued Kaiser Permanente in Oregon District Court, alleging multiple state and federal statutory violations, including that his termination interfered with his leave rights under the FMLA. The Oregon District Court granted summary judgment on each of Pacosa’s claims, determining that there was no issue of material fact that Pacosa violated confidentiality policies, which was the reason for his termination rather than any FMLA violation.

As we have touched upon in previous posts, the chance of a data breach or information misuse rises with the use of electronic data and employee access to that data. Of course, the advent of the electronic medical record is both a result of developing technology and required under HIPAA, but as Mr. Pacosa’s termination illustrates, the portability of electronic records make it easy to view or misuse a patient’s private health information.

Kaiser Permanente’s repeated distributions of confidentiality policies and the obligations to secure and limit access to protected health information by employees illustrates a best practice and minimum necessary compliance obligation that covered entities have under HIPAA’s privacy rule and recent changes to it in the American Recovery and Reinvestment Act of 2009 (“ARRA”). The Pacosa case serves as another reminder to covered entities to review and place appropriate limits on employee access to protected health information.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.