KELLY A. SPINA v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6028-11T3

A-1756-12T3

KELLY A. SPINA,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR, DEVELOPMENTAL DISABILITIES

HEALTH SERVICES,

Respondents.

__________________________________

KELLY A. SPINA,

Plaintiff-Appellant,

v.

DEVELOPMENTAL DISABILITIES HEALTH

ALLIANCE, INC., DEVELOPMENTAL

DISABILITIES HEALTH SERVICES P.A.,

DEVELOPMENTAL DISABILITIES HEALTH

MANAGEMENT, INC.,

Defendants-Respondents.

___________________________________

 

Before Judges Fuentes, Simonelli and Haas.

 

On appeal from the Board of Review, Department of Labor, Docket No. 269,199 (A-6028-11) and from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8778-10 (A-1756-12).

 

Andrea Fischer (Sadowski Fischer PLLC) of the New York bar, admitted pro hac vice, argued the cause for appellant (Cecile D. Portilla, Ms. Fischer and Robert W. Sadowski (Sadowski Fischer PLLC) of the New York bar, admitted pro hac vice, attorneys; Ms. Fischer, Ms. Portilla and Mr. Sadowski, on the briefs).

 

Bradley M. Wilson argued the cause for respondents Developmental Disabilities Health Alliance, Inc., Developmental Disabilities Health Services, P.A., and Developmental Disabilities Health Management, Inc. (Nowell Amoroso Klein Bierman, P.A., attorneys; Mr. Wilson, on the briefs).

 

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, Department of Labor (Alan C. Stephens, Deputy Attorney General, on the statement in lieu of brief).

 

PER CURIAM

In these consolidated matters, plaintiff Kelly A. Spina appeals from the June 20, 2012 final agency decision of defendant Board of Review (Board), which affirmed the decision of the Appeal Tribunal finding her disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(b) for misconduct connected with the work. Plaintiff also appeals from the August 24, 2012 Law Division order, which granted summary judgment to defendants Developmental Disabilities Health Alliance, Inc., Developmental Disabilities Health Services, P.A., and Developmental Disabilities Health Management, Inc. (collectively defendant) and dismissed the amended complaint with prejudice.1 We affirm.

We derive the following facts from the record. Defendant is a private company that sub-contracts with the New Jersey Division of Developmental Disabilities (NJDDD) to provide in-home family support services to people with developmental disabilities and their families. The contract between defendant and NJDDD required defendant and its employees to comply with the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C.A. 1320a to d-8. Consistent with this requirement, defendant's employee manual, which plaintiff received, contained the following HIPAA policy:

Medical records for specific clients may be shared with other individuals only when the client or their legal guardian has signed a Release of Information form.

 

Medical records for specific clients may be shared with health care professionals without a signed release of information when the client is experiencing acute, life-threatening illness and the health care professionals require specific information to assist them in providing care.

Medical records for specific clients may be shared with health care professionals without a signed release of information for circumstances as provided in the confidentiality policy circular maintained by the [NJDDD].2

 

Transmission of medical records via fax or software is also protected by these terms of confidentially and privacy.

 

All medical records no longer in use will be destroyed.

 

[(Emphasis added).]

 

Defendant's HIPAA policy warned employees that a violation may result in disciplinary action, including termination.

Pursuant to a Family Support Services agreement annexed to defendant's contract with NJDDD, defendant provided in-home respite services to V.C., a child with severe developmental disabilities, including autism, impulse control disorder, moderate mental retardation, and cerebral palsy. The services did not include medical, nursing or other health care-related services. V.C.'s legal guardian was responsible for her medical care, including medications. Defendant's respite workers provided services to V.C. Their responsibilities and duties were to: provide in-home services to V.C.; ensure the consent of V.C.'s guardian for all services provided; immediately notify the Program Director, in writing, of any concerns related to V.C.'s care; refrain from providing services related to school and transportation to and from school; and refrain from providing health care services.

At all times relevant to this appeal, defendant employed plaintiff as a respite worker responsible for providing in-home respite services to V.C. As part of her duties, plaintiff fed and bathed V.C., changed her diapers, prepared her for school, administered medication through a gastrostomy tube (G-tube), and put her to sleep. During the day, V.C. attended school, where, via the G-tube, school nurses fed her and administered medications, ensured the G-tube was clean, and examined it to be sure there was no infection. V.C.'s father, R.C., relied on the school nurses to assess V.C. and report if she was sick.

V.C. began acting out after her mother died in December 2008. She frequently cried, pulled her hair, removed her G-tube, banged her head, and tried to remove herself from her harness while traveling on the school bus. Plaintiff reported V.C.'s problems to her supervisor, Quincy Holloway, and complained that R.C. was screaming at the child and not refilling her medication.

Plaintiff also advised Holloway of a foul odor emanating from V.C.'s G-tube and redness around the G-tube site, and that R.C. would not take V.C. to the doctor. Plaintiff brought the G-tube to Theodore Kastner, a medical doctor and defendant's president, who inspected it and found no odor or evidence of bacteria, fungus, or other microorganism. In addition, a doctor examined V.C. on December 20, 2009, and found nothing wrong with the G-tube.

Plaintiff claimed that V.C. was ill for about a week in early December 2009, and R.C. refused to take her to the doctor. On December 10, 2009, plaintiff called V.C.'s school nurse without obtaining a signed release from R.C. and disclosed V.C.'s protected health information (PHI). Plaintiff identified herself as V.C.'s respite worker, told the school nurse that V.C. had been vomiting and pulling out her G-tube for the past three days, and asked if V.C. had been vomiting in school.

Plaintiff also disclosed V.C.'s PHI to her mother, who anonymously called the New Jersey Division of Youth and Family Services (DYFS) on December 17, 2009. According to DYFS's record3 of the call, the caller reported that

[V.C.] is being neglected because the father is not paying her any attention. She has a "G" tube coming out of her stomach and it has been infected for about three weeks and her father, [R.C.], is aware of it and not doing anything about it. She gets sick a lot, has fevers, throws up a lot and reporter believes this may have something to do with the infection. The father refuses to buy a new tube and refuses to bring [V.C.] to the doctor's office. . . .

 

[(Emphasis added).]

 

DYFS investigated the matter.4 Although plaintiff claimed she also reported that defendant was abusing and neglecting V.C., there is no evidence that DYFS investigated defendant or any of its employees.

On December 19, 2009, R.C. advised Holloway about plaintiff's unauthorized call to the school nurse and disclosure of V.C.'s PHI. R.C. also asked Holloway if one of defendant's employees had called DYFS. When Holloway asked plaintiff if she was the caller, she denied it.

On December 21, 2009, defendant terminated plaintiff for violating the HIPAA policy by disclosing V.C.'s PHI to the school nurse and her mother without R.C.'s signed release. Plaintiff then filed for unemployment benefits. On January 15, 2010, the Deputy of the Department of Unemployment held plaintiff disqualified for benefits pursuant to N.J.S.A. 43:21-5(b) from December 20, 2009 to January 30, 2010, because she was discharged for misconduct connected with the work by violating defendant's HIPAA policy.

Plaintiff appealed to the Appeal Tribunal. At a hearing on March 31, 2010, held in defendant's absence, plaintiff admitted, under oath, that she called the school nurse and asked if V.C. was having any symptoms in school, such as throwing up or pulling out her G-tube, or whether V.C. was acting out the same way she was acting out at home. Plaintiff also testified that she did not call DYFS and "had no knowledge . . . whatsoever, [of] DYFS being involved."

The Appeal Tribunal reversed the Deputy's determination. Defendant appealed to the Board because it had not received notice of the March 31, 2010 hearing. The Board remanded to the Appeal Tribunal for a new hearing and decision. At the hearing on December 21, 2011, plaintiff admitted, under oath, that she: called the school nurse and identified herself as an employee of defendant; told her mother about the odor coming from V.C.'s G-tube and bruises on V.C.; asked her mother to call DYFS; and was present when the call was made. Plaintiff also admitted that she contacted the school nurse to determine whether to call DYFS. She contended that defendant discharged her because of the call to DYFS. She also contended that because she administered medications to V.C., she was a health care worker, as defined by HIPAA and the NJDDD, who could disclose V.C.'s PHI for treatment purposes without a release.

The Appeal Tribunal determined that plaintiff's status as a health care worker was irrelevant to whether she violated defendant's HIPAA policy. The Appeal Tribunal found that plaintiff was discharged for violating defendant's HIPAA policy when she contacted the school nurse to inquire about V.C.'s health and disclosed the child's PHI without obtaining a signed release from R.C.

Plaintiff appealed to the Board. The Board adopted the Appeal Tribunal's findings and further found that plaintiff violated defendant's HIPAA policy by discussing V.C.'s PHI with her mother.

Prior to the Board's decision, on October 21, 2010, plaintiff filed a complaint in the Superior Court, alleging that defendant wrongfully terminated her for calling DYFS in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Plaintiff also alleged in an amended complaint that defendant intentionally destroyed daily progress sheets she had prepared for V.C. to fraudulently conceal her documented concerns about V.C.'s condition and verification that she administered medication to the child.

The trial judge granted defendant's motion for summary judgment, finding plaintiff did not engage in whistleblowing activity by reporting to DYFS that her employer abused and neglected V.C.

I.

On appeal, plaintiff contends the Appeal Tribunal erred in finding that her status as a health care provider was irrelevant to determining whether she violated HIPAA. She also contends the Appeal Tribunal should have found that defendant terminated her for calling DYFS.5 We disagree with these contentions.

Our review of administrative agency decisions is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982). We also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). Unless the agency's action "was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210.

"An individual shall be disqualified for benefits . . . [f]or the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the five weeks which immediately follow that week, as determined in each case." N.J.S.A. 43:21-5(b).6 "Misconduct" is defined as an act that is "improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee." N.J.A.C. 12:17-10.2(a). We have defined "misconduct" to be

an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.

 

[Borowinski v. Bd. of Review, 346 N.J. Super. 242, 245 (App. Div. 2001) (quoting Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957)).]

 

The Board found that plaintiff was discharged for violating defendant's HIPAA policy. Defendant's HIPPA policy explicitly prohibited plaintiff from disclosing V.C.'s PHI without a signed release from R.C. unless otherwise permitted by the NJDDD's confidentiality policy. The NJDDD's confidentiality policy permits disclosure of a client's PHI without a written authorization from the legal guardian under very limited circumstances, which did not exist here. See N.J.A.C. 10:41-5.2(d)1-9. Although N.J.A.C. 10:41-5.2(d)5 permits disclosure to medical staff outside the NJDDD without a written authorization, the disclosure must be "necessary for the treatment of the individual." And although 45 C.F.R. 164.50(c)(1), permits disclosure of a client's PHI by a covered entity without a written authorization, it must be for the covered entity's "own treatment, payment, or health care operations." Plaintiff disclosed V.C.'s PHI to the school nurse and her mother was for the purpose of calling DYFS, not for the treatment of V.C. or for payment or health care operations. For this reason, even if plaintiff was a health care provider, which she was not, she violated defendant's HIPAA policy.7

Accordingly, we are satisfied there was sufficient credible evidence in the record as a whole to support the Board's decision that plaintiff was discharged for deliberately violating or disregarding her employer's HIPAA policy, not for the call to DYFS.

II.

Plaintiff contends that the trial judge erred in granting summary judgment dismissing her complaint. She argues that she is a protected whistleblower under CEPA because she reasonably believed that defendant abused and neglected V.C. by failing to provide adequate care.8 This contention lacks merit.

Our review of the grant or denial of a motion for summary judgment is de novo. Manahawkin Convalescent v. O'Neill, 217 N.J.99, 115 (2014). "Summary judgment must be granted if 'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Town of Kearny v. Brandt, 214 N.J.76, 91 (2013) (quoting R.4:46-2(c)). We must decide whether "'the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Manahawkin Convalescent, supra, 217 N.J.at 115 (quoting Brill v. Guardian Life Ins. Co., 142 N.J.520, 540 (1995)).

CEPA provides as follows, in pertinent part:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

 

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:

 

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care; or

 

(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity[.]

 

[N.J.S.A.34:19-3 (emphasis added).]

CEPA's "purpose is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct." Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994). "The object of CEPA is not to make lawyers out of conscientious employees but rather to prevent retaliation against those employees who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193-94 (1998). Accordingly, CEPA makes it "unlawful for an employer to retaliate against an employee who report[s] illegal or unethical workplace activities." Donelson v. DuPont Chambers Works, 206 N.J. 243, 256-57 (2011) (alteration in original) (quoting Dzwonar v. McDevitt, 177 N.J. 451, 461-62 (2003)).

There is no evidence in this case supporting plaintiff's CEPA claim against defendant. Plaintiff did not disclose or report an activity, policy or practice of defendant to DYFS. Accordingly, the judge properly granted summary judgment and dismissed plaintiff's CEPA claim.

III.

Plaintiff contends that there were genuine issues of material fact as to whether defendant concealed, destroyed, or failed to preserve the daily progress sheets she had prepared for V.C. Although the trial judge did not address this contention, our de novo review confirms it lacks merit.

To establish fraudulent concealment, plaintiff must prove:

(1) that defendant in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an existing or pending litigation;

 

(2) that the evidence was material to the litigation;

 

(3) that plaintiff could not reasonably have obtained access to the evidence from another source;

 

(4) that defendant intentionally withheld, altered or destroyed the evidence with the purpose to disrupt the litigation;

 

(5) that plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed.

 

[Rosenblit v. Zimmerman, 166 N.J. 391, 406-07 (2001) (emphasis added).]

 

In a civil case, spoliation occurs "when evidence pertinent to the action is destroyed, thereby interfering with the action's proper administration and disposition." Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 364-65 (App. Div. 1998) (internal quotation marks and citation omitted).

Plaintiff obtained copies of her daily progress sheets for V.C. that documented her concerns about V.C.'s condition and verified she administered medication to the child. Neither a spoliation inference nor a separate tort action is appropriate where, such as here, the plaintiff uncovered the concealment prior to the trial and obtained copies of the documents. Rosenblit, supra, 166 N.J. at 408.

Affirmed.

 

1 Plaintiff also appealed from the November 30, 2012 Law Division order, which denied her motion for reconsideration. Plaintiff apparently raised several new arguments on reconsideration, which she reiterates on appeal. However, she failed to provide the transcript of that motion, as required by Rule 2:5-3(b), rendering our review on the merits impossible, leaving us no alternative but to affirm. Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004).

2 NJDDD's confidentiality policy permits disclosure of a client's records without a release under the limited circumstances set forth in N.J.A.C. 10:41-5.2(d)1-9.

3 DYFS produced the record pursuant to a court order.

4 According to R.C., DYFS informed him that it concluded the allegations were either false or unfounded and closed the file.

5 Plaintiff's additional contentions that the Appeal Tribunal erred by finding she was a consultant rather than an employee, and that the Appeal Tribunal and Board did not know or fairly apply HIPAA, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

6 An amendment to N.J.S.A. 43:21-5(b), effective July 1, 2010, substituted "seven weeks" for "five weeks."

7 Plaintiff was not a health care provider as defined by 45 C.F.R. 160.103, or a provider of services, as defined by 42 U.S.C.A. 1395x(u).

8 We decline to address plaintiff's additional argument that CEPA applies because this case invokes public policy concerns. Plaintiff did not raise this argument before the trial judge and it is not jurisdictional in nature nor does it substantially implicate the public interest. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997).