MARY K RANSOM, Complainant
TELLURIAN UCAN INC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission adopts the findings of fact in the ALJ's decision (a copy of which is attached), adopts the ALJ's conclusion of law that the complainant failed to state a claim for relief under the Wisconsin Elder Abuse Reporting Act (EARA), and adopts the decision dismissing that claim, but it makes the following modifications:
1. The ALJ's first conclusion of law, that the complainant failed to state a claim under the Wisconsin Health Care Worker Protection Act (HCWPA), is deleted, and is replaced with the following:
1. The respondent is a health care facility and a health care provider within the meaning of the Health Care Worker Protection Act (HCWPA).
2. The complainant was an employee entitled to the protection against disciplinary action provided in the HCWPA.
3. The complainant has shown by a preponderance of the evidence that the respondent took disciplinary action against the complainant by discharging her from employment, motivated in part by its belief that the complainant had made a good faith report of information protected by the HCWPA, and therefore has violated the HCWPA.
2. The second conclusion of law is renumbered as the fourth conclusion of law.
3. The Order is deleted.
4. The Memorandum Opinion is deleted.
The decision of the administrative law judge (copy attached), as modified, is affirmed in part and reversed in part. Accordingly, the complaint filed under the EARA is dismissed. With respect to the complaint filed under the HCWPA, the decision of the ALJ is reversed and the matter is remanded to the Equal Rights Division of the Department of Workforce Development for an evidentiary hearing and a determination of the appropriate remedy to which the complainant is entitled, with consideration given to the mixed-motive analysis of Hoell v. LIRC, 186 Wis.2d 603, 522 N.W.2d 234 (Ct. App. 1994).
Dated and mailed
September 26, 2014
ransoma_rmd . doc : 107 : 544
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Scope and Procedural History
The hearing on the merits in this matter was consolidated for two separate ERD complaints, only one of which is before the commission. In the complaint before the commission, the complainant alleged that the respondent violated both the HCWPA (by discharging her because she made a good faith report of information protected by the HCWPA), and the EARA (by discharging her because she made a good faith report of abuse, or neglect under the EARA). The complaint not before the commission alleged that the respondent violated the Wisconsin Fair Employment Act (WFEA) by discharging the complainant for filing a prior complaint under the WFEA.
The ALJ bifurcated the hearing and took evidence only on the issue of liability, reserving the issue of remedy for a later hearing if liability were found. The ALJ found no discrimination in the WFEA complaint, and there was no petition for review filed, so that case is closed. With respect to the case under review here, the ALJ found that the complainant stated a claim under neither the HCWPA nor the EARA, and the complainant petitioned to the commission only with respect to the HCWPA. (1)
Even though the ALJ's dismissal of the HCWPA claim is based on a failure to state a claim, in which the normal analysis calls for assuming the complainant's allegations to be true (see e.g.
Garner v. UW-Milwaukee, ERD Case No. CR200403960 (LIRC, Feb. 10, 2006)), the ALJ held a full hearing and made findings of fact. The findings are very detailed and supported by the record, and tell a history of WFEA complaints by the complainant and the respondent's reactions to those complaints, almost all of which were relevant in large part only to the WFEA complaint. The findings of fact begin to address the HCWPA issue with Finding of Fact No. 30.
The complainant's allegations
The complainant's allegations are: 1) that she was an employee of the respondent; 2) that the respondent was a health care facility or health care provider; 3) that she reasonably believed that two other employees of the respondent, Michelle Gray and Amanda Pechan, while at work for the respondent, had disclosed confidential health information about one or more individuals in violation of the Health Insurance Portability and Accountability Act (HIPAA); 4) that she made a good faith report of that belief to a state agency (the Department of Corrections (DOC)); and 5) that the respondent discharged her for making that report. Under the HCWPA, a cause of action exists when there is an alleged violation of the following provision:
(3) DISCIPLINARY ACTION PROHIBITED. (a) No health care facility or health care provider and no employee of a health care facility or health care provider may take disciplinary action against, or threaten to take disciplinary action against, any person because the person reported in good faith any information under sub. (2)(a)...or because the health care facility, health care provider or employee believes that the person reported in good faith any information under sub. (2)(a)...
Wis. Stat. § 146.997(3). The complainant's allegations are consistent with the above provision in that they allege disciplinary action taken by a health care facility (Tellurian) against the complainant because of a good-faith report of information by the complainant. The next question is whether the complainant's allegations about her reporting in good faith meet the requirements of sub. (2)(a), which addresses "to whom to report" and "what to report" in order for the complainant to be protected. First, to whom to report (the complainant's allegation meeting this requirement is in bold):
(2) REPORTING PROTECTED. (a) Any employee of a health care facility or of a health care provider who is aware of any information...that would lead a reasonable person to believe any of the following may report that information to any agency, as defined in s. 111.32(6)(a), of the state; to any professionally recognized accrediting or standard-setting body that has accredited, certified or otherwise approved the health care facility or health care provider; to any officer or director of the health care facility or health care provider; or to any employee of the health care facility or health care provider who is in a supervisory capacity or in a position to take corrective action: (2)
Wis. Stat. § 146.997(2)(a). The complainant allegedly reported to the DOC, clearly an agency of the state as defined in Wis. Stat. § 111.32(6)(a). (3)
Second, what to report (again, the complainant's allegation meeting this requirement is in bold):
1. That the health care facility or health care provider or any employee of the health care facility or health care provider has violated any state law or rule of federal law or regulation.
2. That there exists any situation in which the quality of any health care service provided by the health care facility or health care provider or by any employee of the health care facility or health care provider violates any standard established by any state law or rule or federal law or regulation or any clinical or ethical standard established by a professionally recognized accrediting or standard-setting body and poses a potential risk to public health or safety.
Wis. Stat. § 146.997(2)(a)1 and 2. The complainant alleged that two employees of Tellurian (the health care facility) violated a federal law (HIPAA) when, at Tellurian, they disclosed confidential health information about inmates of a DOC facility.
The complainant's allegations stated a cause of action under the HCWPA, despite the fact that the confidential health information that the two employees were alleged to have disclosed did not concern patients of the respondent; instead the information concerned individuals who were inmates at a correctional facility run by the DOC, where the two employees held part-time jobs, and where they supposedly had gotten access to the medical information about the inmates.
The ALJ, to support the conclusion that the complainant's report to the DOC did not protect her under the HCWPA, relied on the fact that the DOC is not a health care facility or health care provider under the HCWPA.
Hance v. State of Wisconsin DOC, ERD Case No.
CR201101129 (LIRC, Sep. 16, 2013). It is true that the DOC is not a health care
facility, but that has no relevance to whether a cause of action was stated. It
is only Tellurian, as both the employer of the individuals alleged to have
violated HIPAA and as the entity alleged to have taken disciplinary action
against the complainant, that must be a health care facility or health care
provider. While the main application of the law is to protect employees who
report problems with their employer's own provision of health care, the law
contains open-ended language, in its description of the potential recipients of
the reporting, which includes any state agency, and its description of the
substance of the reporting, which includes any violation of law, (4) that is broad enough to encompass the complainant's allegations.
The commission therefore concludes that even though this is an unusual set of
circumstances, the statutory language is unambiguous, and it covers the
complainant's allegations that her employer, a health care facility, discharged
her for reporting in good faith to a state agency that two co-employees violated
a law while they were at work for the employer. The ALJ's dismissal for failure
to state a cause of action must be reversed. Normally, when the commission does
this it remands the case for a hearing on the substance of the claim, but here
the ALJ conducted a full hearing and made extensive findings of fact. The
hearing notice identified the hearing as a hearing on the merits, not on the
question of whether the complaint stated a cause of action, and the ALJ
announced at the outset of the hearing that it was a hearing on the merits. Both
sides, then, put in their entire cases on the issue of liability. Therefore, it
is appropriate for the commission to proceed to review the merits of the HCWPA
claim. (5)
Evidence in support of allegations
The ALJ's findings of fact, which are consistent with the evidence, support the conclusion that the complainant has carried her burden to show the following elements needed to prove a violation of the HCWPA: 1) that the respondent is subject to the provisions of the act; 2) that the complainant became aware of information that would lead a reasonable person to believe that an employee of the health care facility had violated a federal law or regulation; 3) that the respondent believed that the complainant reported that information in good faith to an agency, as defined in Wis. Stat. § 111.32(6)(a); and 4) that the respondent discharged the complainant at least in part because of that belief.
Whether the respondent is covered by the act
A party may be liable for a violation of the HCWPA only if it is a health care facility or health care provider as defined in Wis. Stat. § 146.997(1), or an employee of a health care facility or health care provider. It is apparent from the evidence that Tellurian is a health care provider and/or a health care facility. The ALJ's Finding of Fact No. 1, based on the deposition testimony of Kevin Florek, Tellurian's president and CEO, stated that the respondent "provides a full range of alcohol and drug treatment programs, mental health group homes and crisis centers as well as long-term care facilities for the mentally ill..." including a detox center, where the complainant, a nurse, worked. The respondent never contended that it was not a health care facility or health care provider. The fact that it advanced the argument that the DOC was not a health care facility or health care provider, while not making that argument for itself, is a clear indication that the respondent acknowledges that it is a health care facility and/or a health care provider.
Whether the complainant became aware of information that would lead a reasonable person to believe that two employees of the respondent had violated HIPAA
The following findings of fact, which are supported by the evidentiary record, support a conclusion that the complainant was told information that would lead a reasonable person to believe that two Tellurian nurses, Gray and Pechan, were violating HIPAA by gossiping about inmates' confidential health information while they were at work:
30. In late August of 2010, three Detox HSAs [human service assistants], Rita Brent (Brent), Lisa Keller (Keller) and Michelle Kunz (Kunz), reported to Ransom [the complainant] that two Detox nurses, Michelle Gray (Gray) and Amanda Pechan (Pechan), were talking at Tellurian about specific inmates at the Department of Corrections' (DOC) Oakhill Correctional Institution (Oakhill) where they both worked part-time in the Health Services Unit (HSU). The three employees informed Ransom that the two nurses discussed various inmates' diseases such as Hepatitis and HIV, penis sizes and whether or not they would sleep with them. Ransom's son was one of the inmates that they mentioned, noting that he looked different currently than his DOC photo. Ransom's son was an ex-inmate and a former Tellurian employee. The three employees who reported the information to Ransom indicated that they thought that Gray and Pechan had accessed confidential health information regarding the Oakhill inmates.
32. Tellurian's Detox Center employees are subject to State of Wisconsin and federal regulations including regulations under the federal Health Insurance Portability and Accountability Act (HIPAA). The Detox Center has a Policy and Procedure Manual that contains rules and regulations regarding the confidentiality of patient records. In addition, Tellurian has a Code of Conduct for its staff that is contained in its Employee Handbook.
33. As a nurse Ransom was required by law to report possible HIPAA violations. She believed that because Gray and Pechan were discussing inmates' diseases, they were violating HIPAA regulations.
Given the complainant's own training about confidentiality of patient information, her understanding of her reporting obligations as a nurse, and her familiarity with Tellurian's own confidentiality policy, it was reasonable for the complainant to form the belief that Gray and Pechan were violating laws or regulations on patient confidentiality, based on the reports from the three Detox HSAs. There was nothing in evidence to support a finding that the Detox HSAs had fabricated their reports to the complainant, or that the complainant had reason to suspect that they had.
Whether the complainant made a good-faith report to an agency that two employees of the respondent had violated HIPAA
The test of whether a complainant's report of information is made in good faith is set out in Wis. Stat. § 146.997(3)(c):
For purposes of pars. (a) and (b), an employee is not acting in good faith if the employee reports any information under sub. (2)(a) that the employee knows or should know is false or misleading...
Given the evidence concerning the complainant's actual belief in what the three HSAs told her, noted in the ALJ's findings quoted above, there is no basis for concluding that the complainant knew or should have known that it would be false or misleading to make a report consistent with what the HSAs had told her.
As to the substance of a report protected by the HCWPA, prior commission decisions are clear that a complainant, when making a report of a violation of law, does not need to identify the law believed to be violated. In Lobacz, supra, it was sufficient for the complainant to report that he thought "fraud" was going on in the falsification of time cards. The commission held that this report was sufficient to bring the complainant within the protection of the HCWPA: "Lobacz's description of the alleged time reporting irregularities as well as his allusion to fraud, an act subject to both civil and criminal penalties, 'would lead a reasonable person to believe' that an employee of the RCI health care facility had violated a state law or rule within the meaning of Wis. Stat. § 146.997(2)(a)1." See also Matson v. Aurora Health Care, ERD Case No. 200504563 (LIRC, Mar. 21, 2008) (a report of the dispensing of controlled substances and personal use of such substances without proper documentation, even though it did not identify a law or rule violated, would lead a reasonable person to believe that the report alleged a violation of a state law or rule, and therefore was a protected HCWPA report).
The complainant's report does not meet the above standard. She gave very sketchy testimony about the substance of the report she made to Gloria Marquardt, the DOC's HIPAA officer, and Marquardt gave conflicting testimony. (Tr., pp. 61, 127-28, 140-141, 306). The ALJ credited Marquardt's testimony over the complainant's:
Ranson [sic] decided to report what she had heard from Brent, Gundersen and Kunz to DOC. She reached Jean Nichols (Nichols) in DOC's Employee Relations Department who on August 29, 2010 referred Ransom's concerns regarding allegations about the two DOC employees on to Gloria Marquardt (Marquardt), DOC's HIPAA Officer. Several days later Marquardt telephoned Ransom who told her that staff members had reported that Gray and Pechan "were discussing information that would be embarrassing." When Marquardt inquired about the kind of information, Ransom replied, "I don't know. I was just told it would be embarrassing and that they had looked it up somewhere." Although Ransom did not allege that Gray and Pechan had discussed protected health information, Marquardt decided that she needed to determine the nature of the embarrassing information to determine if it constituted a HIPAA violation. At the end of their brief conversation, Marquardt informed Ransom that she would conduct an investigation. Several days later Marquardt telephoned Ransom again to ask her for the names of other Tellurian employees who had overheard Gray's and Pechan's conversation.
(Finding of Fact No. 34). The commission defers to the credibility determination of the ALJ, who was able to hear and observe the witnesses as they testified. Although Marquardt investigated the complainant's report as a possible HIPAA violation, she did so only as a precaution. The report itself, judged objectively, did not carry sufficient information to lead a reasonable person to believe that it alleged a violation of law, and therefore it did not meet the standard set out in Lobacz and Matson.
Whether the respondent believed that the complainant made a good-faith report to an agency that two employees of the respondent had violated HIPAA
The fact that the complainant failed to make a report to the DOC that Gray and Pechan had violated HIPAA is not fatal to her complaint. The HCWPA also prohibits a health care facility or health care provider from taking disciplinary action against a person because the facility, provider (or an employee of a facility or provider) believes that the person made a report in good faith that an employee had violated a law, rule or regulation. Wis. Stats. § 146.997(3). The commission applied this standard in Dieterich v. Lindengrove, Inc., ERD Case No. 200503499 (LIRC, Dec. 29, 2008), finding that the complainant had made a prima facie case of retaliation based on a belief that the complainant had made a covered report to a state agency.
A review of the respondent's letter discharging the complainant makes it apparent that HR director Kent Berton, the author of the letter and the individual who decided to discharge the complainant, believed that the complainant's report to the DOC alleged that Gray and Pechan had violated HIPAA. The letter takes it as a fact that the complainant specifically alleged to the DOC that Gray and Pechan had violated HIPAA.
For the complainant to prove this element, however, it must be shown that Berton believed the complainant's report was made in good faith. As noted above, a complainant is not in good faith when he or she knows or should know that the report he or she is making is false or misleading. Wis. Stat. § 146.997(3)(c).
Berton admitted that he had no first-hand knowledge of the alleged HIPAA violation and did not conduct his own investigation into it. It is evident from his letter of termination that he believed the complainant to be acting out of vindictiveness:
As stated above, both individuals feared that the allegations alone could lead to their termination of employment [from the DOC]. By going to the Department of Corrections with your allegations, you were exercising a personal vendetta against two co-workers. You knew the potential consequences on Ms. Gray and Ms. Pechan's employment at the Department of Corrections.
Despite this belief, however, Berton was equivocal about whether the complainant knew or should have known that the report of a HIPAA violation was false or misleading. On adverse examination, Berton testified as follows:
But certainly once I saw the act and heard of the act of Ms. Ransom going to an employer of two co-workers to make a vague, albeit perhaps HIPAA violation-I wasn't sure what it was in many ways. Some characterize it as a HIPAA violation. Some just said it was embarrassing.
(Tr., p. 261). Berton simply did not know whether Gray and Pechan had committed a HIPAA violation. He did not testify that he thought the complainant knew or should have known that such a report was false.
Whether the respondent discharged the complainant for making her report
It is plainly stated in the respondent's letter of termination, quoted in the ALJ's Finding of Fact No. 50, that the respondent was at least partly motivated to discharge the complainant because of Berton's belief that she had reported a HIPAA violation to the DOC. Berton was particularly sensitive to the possibility that a report to the DOC would damage to the respondent's reputation with that agency:
The nature of the allegations, i.e. that Ms. Pechan and Ms. Gray violated HIPAA and inmate confidentiality regulations imply that Tellurian UCAN employs individuals who cannot be trusted to comply with the law. Furthermore, your action directly damages Tellurian UCAN's reputation in working with the Department of Corrections and other enforcement bodies essential to conducting Tellurian business.
Berton himself, then, provided a credible reason why the respondent would be motivated to discharge the complainant for reporting the two employees to the DOC, even though the alleged HIPAA violation did not directly criticize the respondent's provision of health care.
The commission concludes that the respondent is liable for violating the HCWPA for discharging the complainant at least in part because of its belief that she had made a report of a HIPAA violation by two co-employees. The case must be remanded for a hearing on the issue of remedy. Inasmuch as the HCWPA refers back to the remedies of the WFEA in order to effectuate the purpose of the HCWPA, Wis. Stat. § 146.997(4), consideration should be given on remand to the possible application of the mixed-motive analysis under the WFEA, as set out in Hoell v. LIRC, 186 Wis.2d 603, 522 N.W.2d 234 (Ct. App. 1994).
cc:
Attorney Peter Fox
Attorney David Friedman
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