Regional Medical Center Reno,
Nevada and Nevada Service Employees Union Local
Union No. 1107
ARBITRATION PROCEEDINGS PURSUANT TO
This Arbitration arose pursuant to Agreement between the Nevada Service Employees Union Local No. 1107, hereinafter referred to as the “Union, and Renown Regional Medical Center, hereinafter referred to as the “Employer”, under which C. ALLEN POOL was selected by the parties through procedures of the American Arbitration Association to serve as the Arbitrator. The Parties stipulated that the matter was properly before the Arbitrator and that his decision shall be final and binding.
The hearing was held in Reno, Nevada on May 15, 2007 at which time the
parties were afforded the opportunity, of which they availed themselves, to
examine and cross-examine witnesses and to introduce relevant evidence,
exhibits, and argument. The
witnesses were duly sworn and no written transcript was made of the hearing.
Post hearing briefs were timely submitted to and received by the
Arbitrator on June 25, 2007 at which time the record was closed.
Was the termination of Dolores DeLarwelle for just cause? If not, what shall be the appropriate remedy?
RELEVANT PROVISIONS OF THE AGREEMENT
Grievant had been employed for 23 years at Renown Regional Medical Center as a
Registered Nurse. The Center was
formerly known as the Washoe Medical Center.
During her 23 years of employment, she was recognized as a valuable
employee with no disciplines and good performance evaluations.
At time of her discharge, the Grievant was working with the Central
Admissions Unit (CAU). CAU consisted
of approximately 13-14 nurses with three (3) nurses assigned to any one
particular shift. The CAU served as
a transition area for patients being released from the emergency room and the
intensive care unit.
were cared for in the CAU until space, a bed could be located in the main
hospital facility. A patient’s
stay in the CAU is short. It could
be one, two, three hours or overnight. The
CAU is open 24 hours a day for the care of patients Monday through Friday.
The CAU is closed on Saturday and Sunday and reopens again at 7:00 a. m.
on Monday morning.
Patient medical records are kept in the hospital’s mainframe computer.
In the CAU, as in other departments with patients, a patient’s medical
chart is accessed from one of several computer terminals located in the CAU
area. Access into a computer
terminal to work with a patient’s chart is made via a password.
Each nurse, physician, supervisor, and other employees has a password
that allows the employee to access a patient’s medical chart. To
access a patient’s complete medical file an employee would have to go beyond
the patient’s chart and go directly to a patient’s medical file in the
hospital’s mainframe computer. This
access can be achieved through any open computer terminal such as the terminals
located in the CAU area.
policy is clear. Access to a
patient’s medical file that contains personal and confidential information is
authorized for business reasons only. The
policy is a reflection of the federal statute that protects patient privacy, the
Health Insurance Portability and Accountability Act (HIPAA) that became
effective April 14, 2003. The
hospital’s policy is, that after an employee accesses a patient’s chart
using a computer terminal and completed working with the chart, the employee
should close the patient’s chart showing on the computer terminal.
events that led to the Employer’s decision to discharge the Grievant began on
August 10, 2005 when a patient was admitted and released the same day. The
patient was a registered nurse and also an employee of the hospital working as
part of the CAU team. The
patient/employee was admitted a second time on August 12 and released on August
early September, hospital administrators Kim Winters and Marti Hessen-May were
notified that a document was printed by default in another department and it was
a private and confidential document from the above patient/employee’s file.
The confidential document contained an employee password.
Management check with the Information Technology Department and learned
that the computer password belong to an employee in the Radiology Department.
Management also learned that 33 employees had accessed the above
patient/employee’s medical file. An
investigation was launched and management determined that all but one of the 38
different employees had accessed the patient’s record for legitimate business
reasons. The one exception was the
Employer made the determination that the Grievant had made a total of four
unauthorized entries into the patient/employee’s medical file, two entries on
August 11th and two entries on August 15th.
At the Third Level grievance meeting, the Employer made the determination
there was plausible explanation for one of the four entries and the total number
of unauthorized entries was reduced to three(3).
The Grievant was served with a discharge notice effective September 20,
2005. A grievance was filed and was
processed to this arbitration.
POSITION OF THE EMPLOYER
The Employer had just cause to discharge the Grievant.
She violated multiple hospital policies and procedures with her
unauthorized access into a patient’s confidential and private medical records
with respect to the 2003 Health Insurance Portability and Accountability Act (HIPAA).
Using her private ID and her access code, she inappropriately accessed
the patient’s private records on August 11, 2005 and again on August 15, 2005.
The Grievant was interviewed on September 15th and September
19th and her story changed repeatedly then and during the grievance
process. She had no explainable or
justified business reason for accessing the patient’s private and confidential
records. The Grievant was put on
notice. The Employer has a zero-tolerance policy for accessing a patient’s
private and confidential records without a valid business reason and the
appropriate penalty is always discharge. The
Grievance should be denied
POSITION OF THE UNION
The Employer did not have just cause to discharge the Grievant. She
is a Registered Nurse and a 23-year employee with an unblemished record. There
is no evidence that she inappropriately accessed the patient’s confidential
and private records. Nurses in the
CAU, along with physicians and supervisors, routinely log on to the computers in
the CAU to check patient records and determine if the patients due to arrive
from the Emergency Room are appropriate for care in the CAU.
Hospital policy is that after an employee logs on to the computer and
finishes, the employee is to log off. However,
it is common practice for a nurse, a supervisor, and others to not log off and
walk away from the computer terminal to tend to a patient’s need.
When this occurs, the computer terminal can be open for a few minutes or
for an extended period of time. While
the computer terminal is left open, it is also common practice for another
employee to use the open computer terminal to check a patient’s chart and
records. The Grievant
acknowledged that she may have logged on to the computer terminal on August 11th
and August 15th and that she may have walked away leaving it open but
she denies that she, herself, accessed the patient’s confidential and private
grievance should be sustained.
The just cause standard has been and is still a topic of frequent and
often intense discussion among those who labor in the field of labor-management
relations and dispute resolution. The
term is common in collective bargaining agreements and serves as a constraint on
management’s right to discipline or discharge employees.
The term, however, does not have a definitive definition.
It is a concept that embraces a system of fairness and due process.
The concept serves as a standard, a guideline to follow in those
instances where an employer is considering whether to issue some kind of adverse
action to an employee where the employee may have engaged in some kind of
misconduct or misbehavior.
In their consideration of whether to discipline an employee,
practitioners frequently rely on the Seven Tests for Just Cause memorized by
Arbitrator Carroll R. Daugherty in his 1966 Enterprise Wheel arbitration award,
46 LA 359. The guidelines put forth
by Arbitrator Daugherty are useful but are not a prefabricated test, a check
list for determining whether just cause existed to discipline.
They are guidelines and their application will vary according to the
circumstances the case.
The just cause standard includes several elements for the
practitioner’s consideration, i.e. due process, progressive discipline, a fair
investigation, notice, etc. However,
of all the various elements that are a part of the just cause standard, the one
element that is almost inviolable is the requirement that there be adequate
proof of misconduct. If adequate
proof of misconduct has not been established, there can be no discipline.
The Employer’s contention was that the Grievant violated hospital
policies and procedures when she accessed the patient/employee’s
health/medical for non business reasons. In
addition, the Employer also violated the hospital’s “zero-tolerance”
policy for accessing such files for non business reasons.
The policies referred to were “Permitted
Uses and Disclosures of Protected Health Information Without Patient/Member
Consent or Authorization”. The
revision date of this policy was August 2005 (E-5). The second was “Workplace Training and Sanctions for Failure to Comply with Privacy
Policies and Procedures”. The
revision date of this policy was August 2004 (E-4).
In the second policy, Article IV.A Violation of Policies and Procedure
states: “WHS Employees. Any WHS employee who violates a SHS Corporate
subject to appropriate disciplinary action, up
to and including termination of employment (emphasis added).
This policy clearly does not refer to a “zero-tolerance” policy
mandating summary termination in all cases.
The Employer’s Compliance Officer, Thomas Vallas, on cross-examination
testified that the above policy did not say it is a zero-tolerance policy.
Nothing was put into the record showing that the Employer had, in fact, a
written policy of zero-tolerance providing for immediate termination accessing a
patient’s health/medical file for non business reasons.
The so-called zero-tolerance policy, according to hospital’s Compliance
Officer, Mr. Vallas, the policy was made known to all employees during the
mandatory HIPAA Privacy Standards training sessions he conducted for all
employees, including the Grievant. At
the hearing, Mr. Vallas, on direct examination, testified that during the
training sessions he explicitly told the employees that if a patient’s
health/medical file is accessed for non business reasons the employee will be
terminated. As further evidence that
all employees, including the Grievant, were put on notice that non-compliance
will result in “Immediate Termination”, the Employer referred to the HIPAA
training material, specifically a Power Point slide on page 2 that was used and
shown during the training. According
to the Employer, the Power Point slide made it clear to Employees including the
Grievant that termination will always be the consequence (Employer’s Brief, p.
The Power Point Slide referred to by the Employer was titled
“Enforcement” and stated the following:
“Noncompliance with requirements and standards:
Over 25 specific requirements
Fines can exceed $625,000
Wrongful disclosure of individual health information:
Simple/basic disclosure-$50,000 fine or 1 year in prison or both
Intent to sell/use information-$250,000 fine or 10 years in prison or
Immediate termination” (E-7)
The above Power Point Slide is not evidence of a hospital
policy of zero-tolerance. It is
warning that noncompliance of HIPAA, the law, can result in fines in excess of
$625,000 and that wrongful disclosure of individual health information can
result in monetary fines and or time in prison and immediate termination.
To my knowledge, the hospital does not have the authority to impose fines
or prison time.
The Grievant was not charged by the Employer with violating the law or
wrongful disclosure of individual health information.
She was charged with accessing the patient/employee’s health/medical
record without a business purpose (Jt-1).
If she did, she is subject to some kind of discipline.
If not, there can be no discipline.
The Employer contended that the Grievant had no reasonable, plausible
explanation for the four or three times the patient/employee’s medical record
was accessed with her computer ID and Password (Jt-1, Jt-3, & Jt-5).
The evidence record did not support the Employer’s contention.
There were reasonable explanations. First,
the record showed that even though an employee was required to logoff the
computer terminal before leaving the terminal, in practice this was not what was
frequently the practice by many of the employees.
Testimony by both Employer and Union witnesses revealed that employees
often opened a computer terminal with their ID and Password and walk away
without logging off for reasons of tending to a patient’s need or just being
forgetful. If an employee left the
computer without logging off, other employees would use the open terminal to
achieve whatever task he or she needed to accomplish.
Employer witness Kim Winters, on cross-examination and re-direct,
testified that she had at times walked away from a terminal without logging off
and that others had done so for the purpose of tending to a patient.
She also testified that access into the mainframe computer was often done
to find out how many patients from ER may be coming and if the patient was
appropriate for CAU.
Union witness Lila Alabed who was a nurse at the center for 22 years,
testified on direct examination, that on occasion employees would log in and not
log off and that the terminal would be left on sometimes for several hours.
She also testified that she, herself, had accessed patient records using
an open terminal that someone else had left open and that the practice was
routine. Union witness Greg Suhl,
who was a registered nurse at the hospital for 38 years, testified that he would
log in and leave the computer terminal open almost everyday.
He acknowledged that the policy was to log off but that it was not
practical to do so. He further
testified that if a terminal had been left on he would normally ask the person
who opened the terminal if he can use it.
The Employer’s contention that the Grievant repeatedly changed her
story during the interviews on September 15th and September 19 and
throughout the grievance process was also not supported by the record.
Present at the interviews were three hospital representatives: Kim
Winters, Thomas Vallas, Michelle Sanchez-Brickley, and Marti Heesen-May.
Employer witness Marti Heesen-May testified that at the two interviews
the Grievant gave two slightly different versions when questioned about
accessing the patient/employee’s records.
Two slightly different versions is not adequate proof of misconduct.
Thomas Vallas, also present at the two interviews, testified on direct
examination that the Grievant, at first, denied accessing the records and then
later admitted it may have occurred when she walked away and left the computer
terminal open. Mr. Vallas also
testified that he kept no notes of the interviews, that he did not consider her
long employment, her prior record, and did not consult the Collective Bargaining
Agreement or consult with any outside attorney.
Michelle Sanchez-Bickley, the Employer’s Senior HR Business Partner,
testified that her recall of the two interviews with the Grievant was the same
as that of the other hospital representatives present during the interviews.
Ms. Bickley testified that the decision to terminate was a result of a
group consensus of those present at the two interviews.
She testified that the she considered the Collective Bargaining
Agreement, the 7 steps for determining just cause, and that the decision was
based on the zero-tolerance policy. Ms.
Bickley testified on cross examination that the misconduct in this instance was
severe enough to warrant termination.
Adequate proof of any
misconduct by the Grievant was not established in the record.
The Employer’s decision to terminate was based on their contention that
the Grievant had “no reasonable explanation” for her entries into the
patient/employee’s medical record. That
was not adequate proof of misconduct. It
was, at best, an inference from defective evidence.
Yes, her ID and password were used but that was not proof she
intentionally accessed the records given that the computer terminals were open
all too often for other employees to use.
In addition, the so-called unauthorized entries cited by the Employer on
August 11th and August 15 were not proof. The
two entries on August 11, according to the Audit Log (E-2), occurred at the same
time of day, 6:37 p.m. The
possibility of that happening was not logical.
The two entries on August 15th were recorded as occurring only
one minute apart, 7:05 a.m. and 7:06 a.m. This,
too, was not adequate proof of misconduct. Ms.
Bickley’s testimony that the group’s decision to terminate, in addition to
the other policy violation, was based on the hospital’s zero-tolerance policy
was also not adequate proof of misconduct. As explained in the above, the
hospital did not, in fact, have a zero-tolerance policy.
For the reasons discussed in the above, the decision of the Arbitration
is that the Employer did not have just cause to terminate the Grievant.
The grievance is sustained.
The Grievance is sustained. The
termination of the Grievant, Dolores DeLarwelle, was not for just cause.
The Employer is directed to immediately re-instate Ms De Larwelle to her
position at the hospital and to make her whole for all lost benefits and wages,
with interest, less other income earned. The
Arbitrator retains jurisdiction over any dispute that may arise over the
implementation of the remedy.
Date: ______________ _____________________________
C. ALLEN POOL, Arbitrator
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028