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and (Discharge Grievance)

FMCS Case No. 10-56376


(Union) ARBITRATOR: Frank E. Kapsch, Jr.

DATE AND PLACE OF HEARING: January 18, 2011 at the offices of MN Bureau of Mediation Services and subsequently at the offices of MN Nurses Association in St. Paul, MN.

RECEIPT OF POST-HEARING BRIEFS: Both Parties submitted timely briefs as of March 5, 2011. The arbitrator closed the record on March 5, 2011, upon receipt of the briefs.



Paul J. Zech, Attorney Richard L. Kaspari, Attorney Felhaber, Larson, Fenlon and Vogt Metcalf, Kaspari, Engdahl & Lazarus 220 South Sixth Street Suite 2200 333 Parkdale Plaza Minneapolis MN 55402-4504 1660 South Highway 100 Tel: (612) 573-8436 Minneapolis MN 55416-1573 Tel: (952) 592-9444


The Parties stipulated that this Arbitrator has been properly selected to hear and resolve this dispute in accordance with the provisions of Article/Section 25 of the applicable labor agreement and thereby possesses the specific authorities and responsibilities set forth therein.

The Parties also agreed that they would each waive their contractual right to appoint additional representatives to the arbitration panel and, therefore, the 1 decision of this arbitrator shall constitute the final and binding decision in this matter.


The Parties stipulated that the Issue is; Did the Employer, on or about June 4, 2009, discharge Gail Bauer, an employee, with just cause? If not, what shall be the remedy?


Allina Hospitals & Clinics is a non-profit health care organization with headquarters located in Minneapolis MN. Allina operates eleven hospitals and some 85 clinics and related health care facilities throughout Minnesota and western Wisconsin. It employs some 30,000 people within its organizational system. One of its eleven acute care hospitals is United Hospital located in St.

Paul MN and it is the specific locus involved in this matter.


The Minnesota Nurses Association (MNA) is a union of professional Registered Nurses (RNs). MNA traces its heritage and evolution back to the early part of the past century. Its purpose and mission is to advance the professional, economic and general well-being of RNs throughout the state of Minnesota. MNA’s current membership is approximately 20,000. The MNA currently represents RNs in numerous collective bargaining units throughout the state of Minnesota, including a unit at Allina’s United Hospital in St. Paul, MN.

–  –  –

The Employer, Allina/United Hospital and MNA, the Union, have had a continuing and on-going collective bargaining relationship dating back decades and this relationship has been reflected in a successive series of labor agreements during that period. The labor agreement; which the Parties agree is applicable to this matter, was effective June 1, 2007 and expired on or about May 31, 2010.

–  –  –

The subject and focus of this matter is Gail Bauer, the Grievant. Ms. Bauer commenced employment with the Employer at United Hospital in 1973 and worked thereafter as a Registered Nurse until her termination in June, 2009.

From approximately 2000 to her discharge, Ms. Bauer worked in the Same Day Interventional Unit (SDIU) at the hospital. SDIU is a pre- and post- procedure care unit for non-critical outpatients and some non-critical inpatients scheduled to undergo Cardiac Catheterization procedures in the adjoining Cardiac 2 Catheterization Laboratory (CV Lab). Because SDIU is neither equipped nor staffed to provide the level of care needed by critically ill patients, there are various types and classes of inpatients scheduled for catheterization procedures in the CV Lab who are never routed into or through SDIU.

Specifically, inpatients coming from the hospital’s Intensive Care Unit (ICU) and scheduled for procedures in the CV Lab are never seen in or routed through SDIU; because they require constant critical care monitoring, which SDIU is not equipped to provide. Additionally, inpatients who are being ventilated and patients who are to undergo significant surgical procedures in the CV Lab that require the presence of a full surgical staff are not routed through SDIU. An example of such a surgical procedure would be the insertion of an intra-aortic balloon pump (IABP). Again, SDIU is not equipped or staffed to handle or deal with those types of critical care patients.

To facilitate effective and efficient care and treatment of both in- and out-patients utilizing its medical care and treatment services and facilities, Allina uses two separate computer programs for maintaining patient records and schedules.

The first system is called “Navicare”. Navicare provides staff employees with limited information regarding a patient’s status. The information displayed on a staff employee’s computer screen, via Navicare, would include basic patient identification and current unit location. It may also display small icons to indicate what is currently happening with respect to the patient. For example, a small icon depicting a child’s balloon next to the patient’s name would indicate that patient is scheduled to or is engaged in a balloon pump procedure. The Hospital staff typically use the limited patient information available via the Navicare system to manage and facilitate the flow and movement of patients within the facility and to manage and monitor staffing needs. Navicare does not display a patient’s detailed electronic medical record.

To access a patient’s detailed electronic medical record and staff employee would utilize the second Allina program system which is called “Excellian”. The Excellian program essentially contains the entire medical record for a patient in “electronic” form. Access to patient records in Excellian by staff employees is limited to only those employees who are directly involved in that patient’s care or who have a business-related reason requiring such access.

How does Excellian work? When a staff employee initially logs into the program, s/he will encounter an opening page or screen referred to as “DAR”. The DAR screen contains basic non-medical identification information as to what patients are currently in the “system”. To access patients actual medical record, a staff employee would locate the patient’s name on the DAR screen, right-click it and click again to open the patient’s actual medical record. Once in the record, the employee is free to access all the various types of information and 3 documentation relating to the patient’s medical history, tests, diagnoses, treatments, etc.

The requirement for health care organizations, such as Allina, to insure the safety, security and confidentiality of patients’ medical information comes via a Federal statute known as the Health Insurance Portability and Accountability Act of 1996, commonly referred to as “HIPAA”. 1 Among other purposes, HIPAA clearly established the concept that an individual’s medical information is personal and private information that belongs to the individual; not the various health care providers from whom the individual may receive medical care and/or treatment. HIPAA also recognizes that in order to receive proper medical care, the individual must share his or her medical information with the selected providers. The statute also recognizes that due to the inherent nature of the health care system, the health care providers will retain the patient’s medical information and record, long after care and treatment has been completed and the patient is gone.

Accordingly, HIPAA mandates that all health care providers maintain reasonable, prudent and necessary systems to insure that individual personal health information is properly secured, safeguarded and kept confidential. The statute refers to “Protected Health Information” (PHI) as “…health information that identifies and individual or could create a reasonable basis to believe the information could be used to identify an individual.” In compliance with the requirements of HIPAA in maintaining the security and confidentiality of PHI, Allina and its constituent operating entities, such as United Hospital, have adopted various policies, training programs, procedural rules and disciplinary procedures for all of its employees, including the RN staff.

Allina specifically educates and instructs each of its employees on the details of its policies and protocols with respect to HIPAA as part of an in-house training module referred to as “Compliance Training”. This training module is available to employees as a computer driven, self-paced, interactive computer program.

Newly hired employees receive the training as part of their initial employment orientation. Current employees are required to complete the Compliance training module annually as a refresher.

A relevant excerpt from the Compliance training module:

–  –  –

Allina permits the access, use and disclosure of protected health information only for legitimate business reason. In determining whether 1 In addition to the provisions of HIPAA, there are also Minnesota statutes and regulations that require the protection, privacy and confidentiality of individual medical records.

4 there is a legitimate business reason to access, use or disclose information, you must also consider whether it is the minimum necessary information to accomplish the intended purpose. All movements in Excellian and other Allina Electronic Medical Records leave an electronic trail or footprint. This trail helps to insure a high degree of accuracy in the care that we provide and ensure that confidentiality is maintained.

Violating Allina’s policies or procedures relating to a patient’s protected health information could result in termination. Allina has terminated employees every year since the Privacy Rule became effective for inappropriately accessing a patient’s medical record, or disclosing information without the patient’s consent. Allina takes these violations very seriously.

For more information on Allina’s position regarding PHI, review the policy on Confidentiality of Patient Information in the Employee Policy Handbook in My Allina.com.

According to the Employer’s records, Ms. Bauer completed her 2009 annual Compliance Training module on March 1, 2009.

On the evening of May 10, 2009, a former nurse employee at United Hospital (hereinafter referred to as Patient “PS”) came into the hospital’s Emergency Department. Patient “PS” was very sick and was routed to the CV Lab for a diagnostic workup and was subsequently admitted to the Intensive Care Unit (ICU). In the ICU she was placed on a ventilator and her physician subsequently scheduled her for an intra-aortic balloon pump procedure in the CV Lab the following afternoon, May 11, 2009.

On the morning of May 11, 2009, RN Bauer was routinely working in SDIU. She recalls that at about 9:30 AM Patient “PS’s” daughter came into SDIU appearing somewhat distraught. The daughter also worked at United and had previously worked in SDIU as a Health Unit Coordinator and was acquainted with Ms. Bauer and other SDIU employees.

The daughter proceeded to inform Bauer and the other employees that her mom had been admitted to ICU the night before and was now on a ventilator and in critical condition. It was obvious to all present that the daughter was very concerned about her mother’s medical condition. After briefing Bauer and the other SDIU employees present about her mother’s medical status, the daughter left the area and did not return.

Bauer acknowledges that she was acquainted with Patient “PS” as a past coworker at the hospital and noted that she had attended a bridal shower a few months earlier and “PS” had been present. However, she further acknowledged that she and “PS” were not close friends.

5 Patient “PS” was scheduled to undergo an intra-aortic balloon procedure (IABP) in the CV Lab at about 1:30 PM. As noted above, because she was coming from the ICU as 1) an inpatient, 2) a critical-care patient and 3) on a ventilator; she did not require any services in SDIU and was transported directly from ICU to the CV Lab for the balloon procedure.

At approximately 2:52 PM and, again, at 3:01 PM on May 11, 2009, RN Bauer used a computer in SDIU to access Patient “PS’s” medical record via Excellian.

According to the “trail or footprint”, Bauer specifically looked at a report detailing her inpatient treatment, her “Kardex”, which showed all of her past and current ailments and diagnoses, and, finally, Bauer reviewed the documentation covering the treatment that “PS” had received in the Emergency Department the night before.

Ms. Bauer admitted, in the hearing, that after she exited PS’s medical record the second time she had turned to a nearby RN co-worker and said, “I think I may have just screwed up!” The other RN apparently quickly discerned what had just happened and said something to the effect, That’s confidential, you don’t do that, or other words to that effect.

For whatever reason, Ms. Bauer chose not to voluntarily report the incident to her supervisor or any other superior.

On May 28, 2009, an anonymous phone call was received on the Allina Integrity Reporting Line reporting that the caller believed that Ms. Bauer had improperly accessed a patient’s medical record on May 11, 2009 without a valid business reason for doing so.

Management subsequently commenced an investigation into the Integrity Line allegation. A preliminary examination of Bauer’s Excellian “trail or footprint” on May 11 disclosed the two access incidents involving Patient “PS’s” medical record for which there was no readily discernable explanation.

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