Labor & Employment Law

Termination recommended as the penalty for the employee?s submitting fraudulent medical data

Termination recommended as the penalty for the employee?s submitting fraudulent medical data
Dep't of Environmental Protection v. Bellach, OATH Index No. 1574/08 (Apr. 30, 2008).

ALJ Kevin Casey found that a sewage treatment worker submitted 21 fraudulent medical notes to obtain sick leave to which he was not entitled.

The ALJ said there was no need to preclude hearsay statements from the medical providers due to the Health Insurance Portability and Privacy Act (HIPAA). 45 C.F.R. §§ 160, 164 (2008) because Environmental Conservation did not rely on confidential medical information. Rather, it offered evidence that Bellach had not received medical care. Furthermore, HIPAA does not create a new evidentiary privilege for disciplinary hearings.

Significantly, the Administrative Law Judge said that by submitting medical notes and claiming that he was sick on the dates in question, Bellach implicitly waived his right to confidentiality and authorized his employer to contact the medical providers to verify the authenticity of the notes.

Finally, the decision notes that a patient?s remedy for an alleged HIPAA violation is to notify the United States Department of Health and Human Services.

The penalty recommended by ALJ Casey: Termination.

Full post as published by New York Public Personnel Law on May 14, 2008 (boomark / email).