STATE PROTECTIVE HEALTH SERVICES STATE DEPARTMENT OF HEALTH v. VAUGHN 372381800990E (2009)

¶ 1 The first impression issue in this case is whether a certified nurse aide's photocopying a resident's medication record and releasing it to the Equal Employment Opportunity Commission (EEOC) requires the Oklahoma State Health Department (the Department) to make a finding of misappropriation of a resident's property and place the finding on the Oklahoma Nurse Aide Registry pursuant to title 42, sections 1396r(e)(2) and 1396r(g)(1)(C) of the United States Code; title 42, sections 483.13, 483.156, and 488.301 of the Code of Federal Regulations (CFR); title 63, section 1-1951 of the Oklahoma Statutes; and sections 310:677-1-2, 310:677-7-4, and 310:677-7-4 of the Oklahoma Administrative Code (OAC).

I. FACTS

¶ 2 The relevant facts at all stages of the proceedings, including appellate review, are undisputed. While employed by the Epworth Villa (Epworth) nursing home as a certified nursing assistant, Bernadine Vaughn filed a complaint with the EEOC, alleging racial discrimination. Thereafter and while still working at Epworth, Ms. Vaughn saw a patient's medication record on a copier. Ms. Vaughn believed that the medication record showed that Caucasian nurses had made errors for which they were not disciplined, although Ms. Vaughn had been disciplined for similar errors. Ms. Vaughn photocopied two pages of the medication record¹ and gave them directly to the EEOC to support her claim of racial discrimination. Ms. Vaughn did not take the original record off Epworth's premises. Epworth's personnel policies defined the records as Epworth's property. There was no evidence that the patient or the patient's family knew about the incident, let alone suffered any harm.²

¶ 3 During the EEOC proceeding,³ Epworth discovered that Ms. Vaughn had given the photocopies to the EEOC and terminated her employment. Epworth reported to the Department that Ms. Vaughn had misappropriated a resident's property. The Department commenced administrative proceedings against Ms. Vaughn.

¶ 4 The Department asserted that Ms. Vaughn, a certified nurse aide, “is required to comply with the rules and other applicable laws as set out in 63 O.S. §§ 1-1901 et seq.[,] Public Health Code-Nursing Home Care Act.” The Department alleged that on May 24, 2005, Ms. Vaughn had misappropriated a resident's property by “making copies of a resident's medication records and taking them outside the facility without permission to copy records[,]” which allegation it says it verified. The Department alleged that these acts violated title 42, sections 1396r(e)(2)⁴ and 1396r(g)(1)(C) 5 of the United States Code and title 42, sections 483.13,⁶ 483.156,⁷ and 488.301 8 of the Code of Federal Regulations (CFR).⁹ It did not allege that Vaughn had violated any state statutory or regulatory laws. The Department requested a hearing “to determine whether the facts as alleged sustain a finding against [Ms. Vaughn] requiring the posting of said finding upon the Nurse Aide Registry of the Oklahoma State Department of Health.”

¶ 5 Both Ms. Vaughn and the Department filed motions for summary judgment.¹⁰ In her motion, Ms. Vaughn recited the definition of misappropriation found at section 310:677-1-2 of the OAC and stated that this definition applied. She did not rely on the federal definition of misappropriation found at title 42, section 488.301 of the CFR. As discussed later, the federal and state definitions of misappropriation differ significantly. Ms. Vaughn argued (1) that the medication records were not the patient's property, but Epworth's property; (2) that the photocopying of medication records for use as evidence before the EEOC was beyond the scope of the state and federal rules and regulations; and (3) that her actions were protected by the “special evidentiary privileges which attach to EEOC proceedings.”

¶ 6 The Department filed a response and counter motion for summary judgment. It argued that the photocopied pages' content was the resident's property, that the content was confidential under the Health Insurance Portability and Accountability Act of 1996 (HIPAA); that Ms. Vaughn took the medical information without entitlement or the resident's consent and distributed it to a third party; and that Ms. Vaughn's actions constituted misappropriation of property as defined by section 310:677-1-2 of the OAC, requiring a confirmed finding of misappropriation to be placed on Ms. Vaughn's record on the Oklahoma Nurse Aide Registry (Registry). At the hearing on the motions, the Department clarified that its position is Ms. Vaughn transferred the resident's medical information to a third party. Ms. Vaughn's response to the Department's position was, among other things, that the state statutes and regulations governing the Registry cannot be extended to cover disclosures of patient information because such disclosures are governed by HIPPA.¹¹

¶ 7 The Administrative Law Judge (ALJ) found Ms. Vaughn “guilty of the act of misappropriation of property belonging to a Resident.” He ordered that the “Nurse Aide Registry shall reflect in its official record and registry that [Ms. Vaughn] is found to have committed the act of misappropriation of property of a Resident .” Ms. Vaughn petitioned for review in the district court. Without providing reason or analysis, the district court affirmed the ALJ's decision. Ms. Vaughn filed her petition in error in this Court seeking review of the district court's order. The appeal was assigned to the Court of Civil Appeals. The Court of Civil Appeals focused only on the issue of whether a person has a property right in the person's medical information and found such a right exists. Stating that Ms. Vaughn's acts were an “unauthorized disclosure” and without analyzing the other elements of misappropriation, the Court of Civil Appeals affirmed the trial court.

II. STANDARD OF REVIEW AND STATUTORY CONSTRUCTION RULES

¶ 8 Review of an agency decision is governed by the APA, title 75, section 322. It provides that a reviewing court

may set aside or modify the order, or reverse it and remand it to the agency for further proceedings, if it determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decisions are:

(a) in violation of constitutional provisions; or

(b) in excess of the statutory authority or jurisdiction of the agency; or

(c) made upon unlawful procedure; or

(d) affected by other error of law; or

(e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, as defined in Section 10 of this act, including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact; or

(f) arbitrary or capricious; or

(g) because findings of fact, upon issues essential to the decision were not made although requested.

75 O.S.2001, § 322(1).

¶ 9 In the present case there are no disputed facts, so we must determine if the ALJ's order was free of legal error and was within the Department's authority. Because the issue presented is purely a matter of law, we employ a de novo standard. In re Estate of Jackson, 2008 OK 83, ¶ 9,194 P.3d 1269, 1272. Such review is plenary, independent, and non-deferential. Id. The Department does not posit that there is a longstanding construction of an ambiguous or uncertain statute such that its interpretation is entitled to deference. See Bradshaw v. Oklahoma State Election Bd. ., 2004 OK 69, n. 5, 98 P.3d 1092, 1094 (“An agency's longstanding construction of an ambiguous or uncertain statute will not be disturbed without cogent reason.”).

¶ 10 This Court has consistently acknowledged: “Where it is necessary to procure a license in order to carry on a chosen profession or business, the power to revoke a license, once granted, and thus destroy in a measure the means of a livelihood, is penal and therefore should be strictly construed.” State ex rel. Okla. State Bd. of Embalmers and Funeral Dirs. v. Guardian Funeral Home, 1967 OK 141, ¶ 19, 429 P.2d 732, 736 (quoting Moore v. Vincent, 1935 OK 763, ¶ 8, 50 P.2d 388, 389). The loss of a license which is required to work in a given field negatively impacts both a person's livelihood and reputation. Johnson v. Bd. of Governors of Registered Dentists, 1996 OK 41, ¶ 19, 913 P.2d 1339, 1345.

¶ 11 Here the Department's regulations requiring a finding of misappropriation of a resident's property to be placed on the Registry deprives a certified nurse aide of the right to work as such. See Appendix B attached hereto. Such a finding is the equivalent of permanently revoking the certification since there is no statutory or regulatory limit on the employment ban, and we strictly construe the governing statutes and regulations.

III. CONTROLLING FEDERAL AUTHORITY

¶ 12 As part of the participation in federal Medicare and Medicaid programs, title 42, section 1396r(e)(2)(A) of the United States Code requires states to establish and maintain a nurse aide registry. Section 1396r(e)(2)(B) mandates that the registry provide “for the inclusion of specific documented findings by a State under subsection (g)(1)(C) of [section 1396r] of resident neglect or abuse or misappropriation of resident property involving an individual listed in the registry, as well as any brief statement of the individual disputing the findings.”¹² Section 1396(g)(1)(C) requires states to “investigate and make findings concerning neglect and abuse and misappropriation of resident property by a nurse aide of a resident in a nursing facility․” Misappropriation of resident property, as defined by the federal regulations, is “the deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident's belongings or money without the resident's consent.” 42 C.F.R. § 488.301 (2003). As used in the definition of misappropriation, the term “money” is self-explanatory, leaving only the term “belongings” for construction. Because the term “belongings” is not defined in title 42 of the United States Code or in the associated regulations, we turn to its plain and ordinary meaning. Garcia v. Teitler, 443 F.3d 202, 207 (2nd Cir.2006); see Welch v. Crow, 2009 OK 20, ¶ 10, 206 P.3d 599, 603.

¶ 13 The term “belongings” is defined as goods or effects. Webster's New International Dictionary of the English Language 250 (2nd ed.1961). “Effects” means goods or moveables, id. at 818, and “goods” is defined as commodities, wares, and portable personal property. The American Heritage Dictionary 567 (2nd coll. ed.1982). Thus, “belongings” plain meaning denotes movable items, not an intangible property right in medical information.

¶ 14 Based on the definition of misappropriation in title 42, section 488.301 of the CFR, federal authority does not include disclosure of medical information within the prohibition against misappropriation of a resident's property. In turn, we do not find congressional intent requires that the disclosure of medical information be listed on a nurse aide registry. Our inquiry would end here except that Ms. Vaughn injected the question of whether she had misappropriated a resident's property under the Department's regulation by quoting the definition found at OAC, section 310:677-1-2 and stating that it applies here. Bd. of Exam'rs of Veterinary Med. v. Mohr, 1971 OK 64, ¶ 26, 485 P.2d 235, 240 (“[T]he issues in an administrative proceeding are ordinarily limited to those raised by the pleadings.”). Thus, we turn to Oklahoma's statutory and regulatory laws.

IV. OKLAHOMA STATUTORY AUTHORITY

¶ 15 In response to the federal mandate to establish a registry, Oklahoma enacted legislation which is codified at title 63, section 1-1951 of the Oklahoma Statutes and which requires the Department to establish and maintain a registry for certified nurse aides and for nurse aide trainees. 1996 Okla. Sess. Laws 1552-1554, ch. 336, § 8. The registry must provide “a process for notification and investigation of alleged abuse, exploitation or neglect of residents of a facility or home, clients of an agency or center, or of misappropriation of resident or client property.” 63 O.S.Supp.2002, § 1-1951(D)(1)(b). Statutorily, the registry must include information on any Department finding of abuse, neglect or exploitation¹³ by the certified nurse aide or nurse aide trainee, id. § 1-1951(D)(3)(a)(4), including the nature of the allegation, documentation of the investigation, evidence supporting the Department's decision to confirm the allegation, hearing date if one was requested, and any statement by the person disputing the finding. Id. § 1-1951(D)(3)(a)(4)(a). This provision does not include a requirement that a finding of misappropriation of resident property must be posted on the registry.¹⁴ Because this proceeding is penal in nature and requires a strict construction of the statute, we will not insert such a requirement into the statute.¹⁵

¶ 16 When the Department receives an allegation of abuse, exploitation or neglect, or an allegation of misappropriation of property, it is to make a note on the Registry that the allegation is pending. Id. § 1-1951(D)(5). If the Department finds that the allegation was unsubstantiated, then the pending notation is removed. Id. If the Department finds that there is a basis for the allegation and gives notice, the accused may request a hearing. Id. § 1-1951(D)(6). If, after the hearing, the Department finds that the accused has committed abuse, neglect or exploitation of a resident or client, or misappropriation of resident's or client's property, then the Department must send its findings to the accused, to the district attorney where the violation occurred, and to the Medicaid Fraud Control Unit of the Attorney General's Office. Id. § 1-1951(D)(7). The Department must notify the accused of ineligibility to work as a nurse aide in certain nursing home type facilities and of the accused's appeal rights. Id. There is no express statutory requirement that a finding of misappropriation of property be placed on the Registry, and again we will not insert one.

¶ 17 The statutes require a facility to check the Registry before hiring a person to work as a nurse aide. Id. § 1-1951(D)(8). The facility is forbidden to hire someone which the Registry indicates is “personally responsible for abuse, neglect or exploitation.” Id. Again the statutes do not expressly prohibit a facility from employing someone who has been found to have misappropriated a resident's or client's property.

V. STATE REGULATIONS

¶ 18 The Department has the power and duty under title 63, subsection 1-1951(A)(6) to “[e]xercise all incidental powers as necessary and proper to implement and enforce the provision of this section.” Subsection 1-1951(B) requires the State Board of Health to promulgate rules to implement the provisions of section 1-1951.

¶ 19 The Department's definition of “misappropriation of property” deviates significantly from the federal definition found at title 42, section 488.301 of the CFR and discussed earlier in paragraphs 12 through 14. The Department defines “misappropriation of property” as

the taking, misapplication, deprivation, transfer, or attempted transfer to any person not entitled to receive any property, real or personal, or anything of value belonging to or under the legal control of a resident or client without the effective consent of the resident or client or other appropriate legal authority, or the taking of any action contrary to any duty imposed by federal or state law prescribing conduct relating to the custody or disposition of a resident's/client's property.

OAC, § 310:677-1-2 (Supp.2003).

¶ 20 The Department argued before the ALJ that Vaughn transferred a patient's property in the form of medical information contained in the photocopied pages to the EEOC without the effective consent of the resident.¹⁶ The definition of transfer is instrumental to the Department's position. In First Nat'l Bank of Frederick v. Lamb, 1928 OK 189, ¶ 14, 267 P.2d 468, 469, this Court defined “transfer” as the passing of rights in property from one person to another, as the act of delivering or conveying property to another, or as the act of handing over or parting with certain rights in property. This Court also recognized a transfer as the removal of a thing or a right from one place or person to another, the change in control or possession, or a change in title. Id. (quoting In re Peabody, 154 Cal. 173, 97 P. 184 (Cal.1908)). Transfer is also defined as “[a]n act of the parties or law by which the title to property is conveyed from one person to another.” Black's Law Dictionary 1342 (5th ed.1979). Yet another source defines transfer as “[t]o convey or shift from one person or place to another[, or] [t]o make over the possession or legal title of to another․” The American Heritage Dictionary 1286 (2nd coll. ed.1982). All of these definitions require the removal or severance of the property from one location or from one person to another.

¶ 21 In contrast to the Department's definition of misappropriation, federal HIPAA regulations prohibit the use and disclosure of medical information by a covered entity except under certain circumstances. 45 C.F.R. § 164.502 (2003). The definition of a covered entity is a health plan, a health care clearinghouse, or a health care provider “who transmits any health information in electronic form in connection with a transaction covered by this subchapter.” Id. at 160.103(3, 97 P. 184). Disclosure is defined as “the release, transfer, provision of, access to, or divulging in any other manner of information outside the entity holding the information.” Id. This definition is clear that, although transfer is one component of disclosure, disclosure also includes other methods of divulging information.¹⁷

¶ 22 Here, Ms. Vaughn may have disclosed resident medical information by divulging it to the EEOC, but she did not transfer a resident's property. The evidence is that Ms. Vaughn took a resident's medical information and disclosed it to the EEOC, but there was no severance of the right to the information or of the information itself from the resident or from Epworth Villa. The Department's definition of misappropriation of property does not include the release or divulging of information. Thus the ALJ erred when it found that Ms. Vaughn had misappropriated a resident's property by transferring information to the EEOC.

¶ 23 Having erred in finding Ms. Vaughn had misappropriated a resident's property under OAC, section 677:310-1-2, the ALJ also erred in ordering the Registry to reflect that Ms. Vaughn had committed the act of misappropriation of a resident's property.¹⁸ Even if Ms. Vaughn had rightfully been found to have misappropriated a resident's property, it would have been error for the ALJ to order her name placed on the Registry since nothing in the relevant state statutes expressly requires a finding of misappropriation of property be put on the Registry for misappropriation of a resident's property.

VI. SUMMARY AND CONCLUSION

¶ 24 We find nothing in the federal statutes or regulations governing the implementation or administration of the nurse aide registry which would support a finding that Ms. Vaughn misappropriated a resident's property by photocopying some pages of a resident's medication record and providing the photocopies to the EEOC. The photocopying of medical records and providing the photocopies to the EEOC was not a transfer of a resident's property so that the disclosure would be within the definition the Department's regulation 310:677-1-2, defining misappropriation of property. Because the ALJ erred in finding Ms. Vaughn “guilty” of misappropriation of a resident's property, it was also error to order the finding placed on the Registry.

¶ 25 The Court of Civil Appeals' opinion is vacated. The judgment of the trial court affirming the ALJ's order is reversed. The cause is remanded to the district court with instructions to reverse and vacate the ALJ's order and enter judgment in favor of Ms. Vaughn and to order the Department to remove all references from the Oklahoma Nurse Aide Registry that Ms. Vaughn is guilty of misappropriation of property or that Ms. Vaughn is guilty of abuse on May 25, 2005.

COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT REVERSED; AND CAUSE REMANDED TO DISTRICT COURT WITH INSTRUCTIONS.

¶ 1 The majority holds that the certified nurse aide's photocopying and dissemination of a patient's records for her own purposes will not support a finding of misappropriation of a resident's property sufficient to require her name to be placed on the Oklahoma Nurse Aide Registry. It does so although the aide's actions violated federal and state law and the patient's statutorily guaranteed privacy rights.¹ . Furthermore, it is undisputed that the aide made no attempt to obtain the permission of the patient or the patient's personal representative and disseminated the records without redacting the patient's name.

¶ 2 The majority opinion ignores the Oklahoma Legislature's acquiescence in agency rules specifically providing for disciplinary proceedings against nurse aides who wrongfully disseminate a patient's medical records. The majority begins its analysis by focusing on a single word, “belongings,” located in the legislative definition of misappropriation of property. In so doing, it applies an unnecessarily narrow definition to the term which strips patients of a protected property right. The majority's interpretation of Oklahoma statutory authority does not comply with the interpretive rule requiring that a statute should be considered in its entirety when legislative intent is questioned.² Finally, the majority ignores Oklahoma's legislatively guaranteed right of privacy in medical records and concludes that an individual may avoid the confidentiality protections of Oklahoma law and the Health Insurance Portability and Accountability Act of 1996 (HIPPA) by merely disclosing a copy of a patient's medical records without consent when disclosure of the original would result in violation of HIPPA provisions. This is clearly a glaring distinction without even a minuscule difference. In both instances the identical information is being revealed. Information which the patient has every right and expectation to be kept private.

¶ 3 I cannot agree with the majority's interpretation or its analysis. Therefore, I dissent.

¶ 4 a. Legislative response to requirements for Nurse Aide Registry and acquiescence in agency rules providing for discipline for the removal of medical records from the employment setting.

¶ 5 Under Federal law, a state must establish and maintain a registry of nurse aides.³ Pursuant to federal regulations, a finding on the registry of abuse, neglect, mistreatment of residents, or misappropriation of their property bars future employment in facilities receiving Medicare or Medicaid funds.⁴ The Oklahoma Legislature enacted identical constraints in 63 O.S. Supp.2006 § 1-1951(D)(7)⁵ . specifically including a provision for notice of ineligibility to work as a nurse aide where clear and convincing evidence establishes a charge of misappropriation of property.

¶ 6 In accordance with the Administrative Procedures Act, 75 O.S.2001 § 250 et seq., the Legislature delegated the duty and the power to establish a registry for nurse aides and trainees to the Department of Health (Department). In so doing, the Department was charged with the duty to promulgate appropriate rules for the implementation of the same.⁶ Administrative rules are valid expressions of lawmaking powers having the force and effect of law.⁷ Administrative rules, like statutes are given a sensible construction bearing in mind the evils intended to be avoided.⁸ If an administrative rule is clear and unambiguous, there is no need to resort to rules of construction to ascertain its meaning.⁹

¶ 7 In connection with its duty to promulgate rules and procedures related to the registry, the Department established the grounds for certification actions against certified nurse aides. The Department specifically outlined “[r]emoving medical records or other documentation pertaining to resident care from the employment setting without authorization” as a ground for certification action.¹⁰ The rule's language is so clear, plain and unmistakable that it is not subject to interpretation and is to be accorded the meaning accorded by the Department.¹¹

¶ 8 If the Legislature disagrees with an agency interpretation, it may: 1) delay, suspend, veto or amend any rule or proposed rule under review by joint resolution;¹² 2) disapprove a permanent or emergency rule at any time if it determines the rule to be inconsistent with legislative intent;¹³ or 3) make emergency rules ineffective through its disapproval.¹⁴ Such legislative action has not been implemented. Furthermore, at least two Legislatures have convened and recessed since the rule allowing discipline was instituted in 2006 without rejecting the same. The Legislature's silence is proof of the lawmakers' consent¹⁵ and its adoption of the administrative construction¹⁶ . specifically allowing the instigation of disciplinary proceedings for the precise situation presented here, a nurse aide's unauthorized dissemination of medical records.

¶ 9 b. “Belongings” as encompassed within controlling federal authority includes a person's private medical records in which the patient has a personal property interest and a legislatively recognized right of privacy.

¶ 10 The majority acknowledges that federal regulations relating to the Medicare and Medicaid programs define misappropriation of resident property as “the deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident's belongings or money without the resident's consent.”¹⁷ It then goes on to define the term “belongings” narrowly as a “movable item, not an intangible property right.” The interpretation ignores patients' property interests and legislatively recognized rights of privacy in medical records. It makes light of one's most precious possession, their state of health, and the records pertaining thereto. One's health is personal and precious to an individual and only to that individual, exponentially more so than any “moveable item” like cash or jewelry which the majority holds so dear.

¶ 11 I would define the term “belongings” as at least two courts have done in unpublished opinions as inclusive of medical records. The Los Angeles County Superior Court referred to belongings as including all of an individual's medical records.¹⁸ The United States District Court of the Northern District of Illinois has done the same.¹⁹

¶ 12 In Hayter v. Kuttler, 185 Cal.App.2d 189, 8 Cal.Rptr. 160 (1960), the California Court rejected an argument that the term “my belongings” should be restricted to tangible personal property. Instead, it determined that “belongings” should be given a broader definition and be considered inclusive of personal property of every nature, both real and intangible. Most certainly, the Hayter court would have included medical records within the definition of “belongings” as intangible personal property.

¶ 13 The majority's characterization of medical records as not being the property of the patient simply cannot be sustained. In Pyramid Life Ins. Co. v. Masonic Hosp. Ass'n of Payne County, 191 F.Supp. 51 (W.D.Okla.1961), the federal court recognized that a keeper of medical records is only the custodian of such records. The keeper may own the medium upon which the information is stored. Nevertheless, the court determined the facility holding such records did not have the right to possess and use the information to the exclusion of the patient, the patient's representative, or those standing in the patient's shoes. Furthermore, the court acknowledged that there were restrictions on the release of the medical records when the patient had not given permission for the same. Finally, the opinion specifically provides that “[t]he patient has a property right in the information appearing or portrayed on the records ․”.

¶ 14 The term “belongings” as utilized in federal regulations intended to protect patient's rights is sufficiently broad to include an individual's private medical records in which the patient has a personal property right. It should not be construed so narrowly as to degrade a patient's property rights associated with the information contained in medical records.

¶ 15 c. When 63 O.S. Supp.2006 § 1-1951 is considered in its entirety, it is clear that a nurse aide who misappropriates a resident's or client's property is intended to be included on the registry as ineligible for employment.

¶ 16 The majority relies on a portion of 63 O.S. Supp.2006 § 1-1951(D) for the proposition that misappropriation of a patient's or client's property was not intended to support inclusion of a nurse aide's name on the registry. The portion of the statute relied upon is 63 O.S. Supp.2006 § 1-1951(D)(3)(a)(4) providing in pertinent part:

“․ The registry shall include, but not be limited to, the following information on each certified nurse aide or nurse aide trainee:

․ (4) information on any finding of the Department of abuse, neglect, or exploitation by the certified nurse aide or nurse aide trainee ․” [Emphasis provided.]

The majority does not consider subsection 7 of the same statutory provision providing:

“If the Department after notice and opportunity for hearing determines with clear and convincing evidence that abuse, neglect or exploitation, or misappropriation of resident or client property has occurred and the alleged perpetrator is the person who committed the prohibited act, notice of the findings shall be sent to the nurse aide and to the district attorney for the county where the abuse, neglect or exploitation, or misappropriation of resident or client property occurred and to the Medicaid Fraud Control Unit of the Attorney General's Office. Notice of ineligibility to work as a nurse aide in a long-term care facility, a residential care facility, assisted living facility, day care facility, or any entity that requires certification of nurse aides, and notice of any further appeal rights shall also be sent to the nurse aide.”

Clearly and unmistakably,²⁰ this subsection makes it plain that where clear and convincing evidence has established the “misappropriation of resident or client property” it is required that notice of ineligibility to work shall be given.

¶ 17 d. An individual may not avoid the confidentiality protections in medical records established by Oklahoma legislative provisions and of HIPPA by merely disclosing a copy of a patient's medical records without consent when disclosure of the original would result in violation of HIPPA provisions.

¶ 18 The majority recognizes that “federal HIPPA regulations prohibit the use and disclosure of medical information by a covered entity except under certain circumstances.” Additionally, it acknowledges that the aide disclosed resident medical information but nonsensically determines that there was no “transfer” of the patient's property as only a copy of the protected medical information was transmitted to the EEOC.

¶ 19 The majority's analysis fails to recognize that the Oklahoma Legislature has specifically provided patients with protection from the wrongful dissemination of medical records. Title 12 O.S. Supp.2004 § 2503 provides that “[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential” medical information. The guaranteed protection does not end with the loss of life, but extends to the patient's personal representative.²¹

¶ 20 Furthermore, the majority's reasoning simply cannot be supported by HIPAA and its provisions. Under HIPAA, a person who discloses individually identifiable health information to another person “shall” be punished by a fine not to exceed $50,000, imprisonment of not more than a year, or both.²² The aide made such a disclosure. Furthermore, she did not dispute the fact that she had violated HIPAA standards in a cause brought in the federal district court based on the identical facts presented here.

¶ 21 In Vaughn v. Villa, 2006 WL 2987728 (W.D.Okla.) [Summary judgment in favor of the employer affirmed in Vaughn v. Epworth Villa, 537 F.3d 1147 (10th Cir.2008) ],²³ the district court notes:

“․ It is undisputed that plaintiff's disclosure of the confidential health information of one of defendant's patients violated defendant's policies, its employee conduct and work rules and HIPAA regulations․”

In the appellate decision, the 10th Circuit stated the following:

“․ In addition to violating Epworth Villa's policies and procedures, and perhaps Oklahoma law, it also appears that Vaughn's conduct may have violated federal law. Under the terms of the federal Health Insurance Portability Accountability Act (‘HIPAA’), ‘[a] covered entity may not use or disclose protected health information, except as permitted or required by this subpart.” 45 C.F.R. § 164.502(a). ‘Protected health information’ includes ‘individually identifiable health information’ that is ‘[t]ransmitted or maintained in any ․ form or medium.’ 45 C.F.R. § 160.103. ‘Individually identifiable health information,’ meanwhile, ‘[i]s created or received by a health care provider ․; and ․ [r]elates to the past, present, or future physical or mental health or condition of an individual ․ and ․ identifies the individual ․” Id.

Vaughn does not appear to dispute that the medical information she transmitted to the EEOC was ‘protected health information’ or that Epworth Villa is a ‘covered entity.’ Instead, Vaughn contends that her conduct was excepted from HIPAA under 45 C.F.R. § 164.502(j), the whistleblower exception. This argument in [sic] unavailable for several reasons. Most basically, however, the whistleblower exception only applies to disclosures made to a ‘health oversight agency or public health authority,’ or ‘[a]n attorney retained by or on behalf of the’ whistleblower, none of which is the EEOC. Id.” [Emphasis provided.]

As the Tenth Circuit makes clear, federal regulations govern “transmitted” medical records, precisely the situation presented here when the nurse provided copies of the patient's medical records to the EEOC.

¶ 22 Whether a copy or an original, the information sent to the EEOC by the aide was unquestionably a criminal act under HIPAA which would support a fine of up to $50,000 and a year in jail. It was also confidential information protected by Oklahoma law.²⁴

CONCLUSION

¶ 23 In its zeal to protect a nurse aide who may be subject to criminal proceedings for her actions, the majority ignores Department rules in which the Legislature has acquiesced and which clearly, plainly, and unmistakably contemplate that a nurse aide who wrongfully disseminates a patient's medical records will be disciplined. It utilizes a tortured statutory analysis of a single term, “belongings,” to conclude that there is nothing which would support a finding that the aide misappropriated a resident's property by photocopying the resident's medication record and providing the same to the EEOC. In order to reach its result, the majority ignores statutory rules of construction providing for the consideration of all relevant statutory provisions as a whole; and it turns it's back on both state and federal statutorily protected rights of privacy in medical records.

¶ 24 It is clear from agency rules, in which the Oklahoma Legislature has acquiesced, that nurse aides are intended to be disciplined for the unauthorized dissemination of a patient's medical records. It is also apparent that the term “belongings” as utilized in state and federal regulations is sufficiently broad to include an individual's private medical records in which the patient has a personal property right. Furthermore, both the federal and state governments have recognized a patient's right of privacy in such records and provided for protection of the same. The majority does not extend the patient these statutorily guaranteed rights. Therefore, I dissent.

TAYLOR, V.C.J.

EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, KAUGER, WINCHESTER, COLBERT, and REIF, JJ., concur. WATT, J., (by separate writing) dissents.