The Case: In Frank Scott’s office Ann Romero, Gary Willis and Frank Scott are gathered in Scott’s office to discuss a cu

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The Case:
In Frank Scott’s office Ann Romero, Gary Willis and Frank Scott
are gathered in Scott’s office to discuss a current employee
relations issue dealing with the online activity of seven hospital
employees. “Thank you all for coming together on such short notice.
Frank has informed me of the situation, and I am very concerned
that we may have multiple facets to this problem,” said Romero.
Scott interjected, “When this issue was brought to me this morning
I immediately contacted Ann. I believe we may have HIPAA [Health
Insurance Portability and Accountability Act] violations and
possibly other compliance concerns.” Romero was referring to an
exchange via social media that occurred among six patient care
services employees (three nurses and three nursing assistants)
along with an employee from medical records. They were discovered
having a conversation about the characteristics of a current
patient on Friday between 10:30 a.m. and 2 p.m. on a popular social
media website. None of the employees involved in the conversation
were on duty at the time. The nurses and the nursing assistants
work during the second shift, and the employee from medical records
was on vacation that day. A HIPAA breach and the hospital’s Code of
Conduct violations are now under review. Romero continued, “I think
we all knew it was only a matter of time before we came together to
discuss employee behavior on social media and its potential impact
on the hospital.” An e-mail of the screen shots
capturing the conversation was distributed to the meeting
participants, and Gary Willis provided handouts before the
discussion began. The following employees participated in the
online conversation: • Tammy Denato, RN. • Christopher Simmons, RN.
• Renee Philips, RN. • Charles Sotherby, nursing assistant. • Holly
Smith, nursing assistant. • Amy Gold, nursing assistant. •
Stephanie Cook, medical records specialist. Below is the exchange
of comments: Christopher: “So glad to be out of CCH for the next
two days! Have had a bear of a patient to deal with tonight.”
Renee: “I bet I can guess which one! Really big guy on MedSurg 2?
He was also a pain yesterday.” Christopher: “Yep, talk about
growling at everything you ask him to do.” Holly: “I worked on
MedSurg 2 yesterday with Renee. He was really tough, and I was at
the end of an unscheduled double shift . . . something better
change soon with the hours the hospital expects.” Amy: “I agree,
Holly. All this overtime doesn’t really cut it, even at time and a
half. The nursing assistants make only a little more than minimum,
and honestly, it just isn’t enough for what they are asking us to
do day in and day out.” Tammy: “The hospital keeps telling us that
they are recruiting, but the new RNs they’re bringing in just don’t
have the experience, but I guess they can pay them a lot less, so
hey, why not just continue to expect more of us?” Charles: “The
number of patients they ask nursing assistants to care for is
ridiculous! No wonder we have patients growling at us like the big
guy on 2. Can we blame him? He was in for a simple respiratory
infection, and now can’t even get a meal while it’s hot. We are
just being asked to do too much!!!” Stephanie: “I hear you guys. In
medical records we see how many patients are in the house, and we
also see the low staffing levels! I feel for you guys . . . working
so many hours and then dealing with a patient who is growling for
everything “CCH better make some changes, or I’m out of there! I
also think several other RNs and nursing assistants will be right
behind me.” Willis responded to Scott’s earlier comments about a
possible HIPAA infraction, “Well, after reviewing the online
conversation, I really can’t say for sure if this would be
considered a HIPAA violation.” “Okay, folks, let’s not get ahead of
ourselves with what violations there are or aren’t because I’m not
even sure we have all the facts at this point,” said Romero.
“That’s true. We should slow down and try to gather as much
information as we can before we make too many judgments,” Scott
said. “Ann, have you had a chance yet to speak with the employees
from patient care services about what happened?” “No, I haven’t
been given their work schedules, and the employee from medical
records is on vacation. I have telephone calls in to each of the
nurses and nursing assistants and am requesting they each come in
before the start of their shifts this afternoon to speak with me,”
said Romero. She looked at Scott. “Frank, I would like you and me
to get in touch with Sara [Sara Donaldson, outside counsel] and
brief her on what we know so far. I believe we will need her
guidance as we move through this process. Can you stick around to
call her as soon as we are done here?” “Sure,” said Scott. “Ok, so
let’s lay out the facts that we have at this time,” said Romero.
“So, Frank, how did this situation come to your attention?” “One of
the patient care services employees stopped me in the hall this
morning and said she had something she wanted to discuss, and asked
if I had a few moments before she went home after her shift. I met
with her, and she began by saying that several of her co-workers
were talking on social media yesterday about work and that she was
uncomfortable with some of the comments made about the hospital and
working conditions, especially the recent uptick in overtime, the
current staffing ratios, etc.,” said Scott. “So, her initial
concern wasn’t about the part where they discuss a patient?” asked
Romero. Scott replied, “I don’t think she or any of the employees
think that anything was wrong with that part of the discussion
because they didn’t use the patient’s name, medical record, address
or any other truly protected health information.” Romero gave a
puzzled look, mildly concerned at this attitude Scott
continued, “The employee who brought this to me said she knows that
we have a Code of Conduct and strict guidelines about making public
remarks about the hospital.” Central Columbia has had a Code of
Conduct in its employee handbook for the past five years that
addresses the use of electronic media in very broad terms. “At the
time the statement was implemented, every employee was required to
sign off indicating he or she had read and understood the
statement,” said Willis. “We worked closely with Frank’s team to
put a process in place in which all new employees are required to
do the same.” Frank distributed a copy of the Code of Conduct.
Below is the excerpt relevant to this incident: We adhere to all
established confidentiality and privacy standards, policies and
regulations including the Health Insurance Portability and
Accountability Act (HIPAA). We actively protect and safeguard
patients’ health information and respect patient privacy in all
forms, including paper, electronics, verbal and telephone. We
adhere to the highest ethical and accountability standards. Central
Columbia Hospital’s staff will uphold and further the mission and
values of Central Columbia Hospital in all professional and
personal representation of our organization. We will treat all
patients, families, co-workers and vendors with respect and
dignity. We will represent ourselves and Central Columbia Hospital
in a professional and positive manner at all times and in all forms
of communication, including paper, electronic, verbal and
telephone. We will direct concerns, grievances, conflicts and
suspicion of fraud or wrongdoing to the appropriately identified
organizational representative or to the compliance hotline. After
the meeting concluded, Romero and Scott stayed to call Sara
Donaldson. “Hello, Sara, this is Frank Scott and Ann Romero. How
are you?” asked Scott. “I’m guessing a little better than both of
you right about now,” replied Donaldson. Scott said, “Yes, I guess
you reviewed the e-mail I sent earlier this morning.” “I did,” she
replied.
The e-mail Scott sent to Donaldson outlined the particulars of
the incident. Donaldson asked a few clarification questions before
addressing their concerns. “The last thing the hospital wants to do
in this case is be viewed as retaliatory given the nature of these
comments,” Donaldson said. She continued, “I am troubled, however,
that they included patient characteristics in their conversation.
While it may appear vague, it was too much information in my view.”
Romero continued, “I’m not sure why these employees feel the need
to air their frustrations on social media. We have employee
discussion groups each month, and everyone is free to raise
whatever questions, ideas or concerns they have. In fact, I make
sure I am at every one of those meetings. We started these several
months ago, and I feel they have been very positive.” “Have they
been well attended?” asked Scott. Romero replied, “I believe they
have, although we simply can’t get every employee to each of the
meetings.” She continued, “Frank, do we have a social media policy
to address this and future situations?” “I’m afraid we don’t,”
Scott said. “I think this is great that you have a statement that
discusses HIPAA and the protection of patients’ rights. It also
seems that you have a sound process in place to ensure compliance,”
Donaldson said. “However, so much has occurred with social media
over the past five years. We need something that provides employees
with the proper guidance. I recommend that you continue with your
plan to meet with each employee and gather as much information as
possible. You may have a HIPAA concern because these employees gave
enough details about this patient that others might be able to
determine who was being discussed. This also gets muddy because
employees were talking about the terms and conditions of their
employment, and that is protected concerted activity under the
Wagner Act, or the National Labor Relations Act.” “I’m not sure I
follow you. How can these employees be protected if they were
clearly violating our Code of Conduct and HIPAA?” asked Romero.
“I’m not saying all of their activity is protected, but the
conversation where they are talking about overtime, staffing, etc.,
is protected,” said Donaldson. “Employees should not be able to
speak poorly about their employers in any public forum and not have
consequences,” said Romero
Discussion Questions