No matter who commits them, HIPAA violations are incredibly serious. There are a wide range of consequences for violations, both for the employee that committed the violation and the Covered Entity that they work for. Here, we will discuss what happens when a nurse violates HIPAA.
By nature of their job, nurses have regular contact with patients and their data. Much of this data is designated as Protected Health Information under HIPAA. This means that the Covered Entity can only use the data in specific ways, only certain individuals can access it, and establish safeguards to ensure that that the data is sufficiently protected.
Nurses have an important role in ensuring that this data is protected. Indeed, as part of a Covered Entity’s workforce, they must be regularly trained in HIPAA compliance. Even so, despite this training, nurses do commit HIPAA violations. The nature and scope of these violations will be important determinants on the consequences for nurses.
There are countless ways by which an accidental HIPAA violation could occur. If a nurse sends an email containing PHI to the incorrect recipient, for example, this is an accidental violation. Similarly, if a nurse leaves documents on a desk in an open office and they are seen by unauthorized individuals, this is also accidental violation.
Some situations may qualify as “near misses” – events that could have resulted in a violation, but by sheer luck did not. Though these are not violations, they should still be reported to a manager or the CE’s HIPAA Compliance Officer to protect against future violations.
Incidental HIPAA violations occur despite the best effort of the nurses in question, and are often the consequence of “permissible” disclosures of PHI. For example, if a nurse walks into a waiting room and recognizes one of the patients, this is an incidental violation. These must still be reported, though do not usually attract severe penalties.
The most egregious violations are deliberate HIPAA violations. These may be due to laziness, but are often more malicious. PHI attracts large sums on the black market, as the data it contains can be used for identity theft or insurance fraud.
Given the different ways in which nurses can violate HIPAA, it is probably unsurprising to know that there are many tiers of consequences. Usually nurses who violate HIPAA will be required to go on a training course to prevent future violations.
There is no private cause of action in HIPAA, so nurses cannot be sued for HIPAA violations. However, there may be State laws that allow patients affected by HIPAA violations to sue individual nurses. If the Office for Civil Rights (which enforces HIPAA) decide that a fine must be paid for a HIPAA violation, it will be paid by the Covered Entity.
In severe cases, or nurses that violate HIPAA may lose their jobs. Indeed, in some cases, they may lose their license to practice as a nurse – ending their nursing career.
Where criminal activity is suspected, the Department of Justice may bring a case against an individual nurse. If found guilty of violating HIPAA, the nurse may face jail time. These prosecutions are usually reserved for cases where the nurse violated HIPAA for personal profit.
In summary, there are a number of different possibilities if a nurse violates HIPAA. Usually, some retraining will be required, but if the nurse has committed a crime, they may face a jail sentence. It is therefore essential to ensure that all nurses are correctly trained in HIPAA compliance and the consequence for violating the Act.