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Home
	  Prohibited Personnel Practices
      Frequently Asked Questions
      1- Non-Discrimination
         2 - Proper Considerations
         3 - Coercing  Political Activity
               4 -  Obstructing the Right to Compete for Employment
               5 - Influencing  Withdrawal from Competition
               6 - Granting  Any Preference or Advantage Not Authorized by Law
               7 - Nepotism
                   8 - Whistleblower Protection
                   9 - Protection Against Retaliation
                   10 - Conduct Not Adversely Affecting Performance
                   11 - Violating Veterans' Preference
                   12 - Violating Merit System Principles
                   13 - Nondisclosure Forms, Policies & Agreements
					14 - Accessing Medical RecordsSearch & Site Index Prohibited Personnel Practice 14:  Accessing Medical Records
	
	 
  Accessing Medical Records
	 
  Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—
  access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13).***Where  can I find provision Number 14?***
    As is true of all of the other prohibited personnel practices (PPPs), this one  can be found at 5 U.S.C. § 2302, specifically § 2302(b)(14).***What does the 14th PPP  prohibit?*** 
    All PPPs begin with a statement that “[a]ny employee who has authority to take,  direct others to take, recommend or approve any personnel action, shall not,  with respect to such authority ....”   The 14th then specifically makes it a PPP for such an employee to  “access the medical record of another employee or an applicant for employment,  as part of, or otherwise in furtherance of, any conduct described in paragraphs  (1) through (13).”***Most of the other PPPs were  part of the Civil Service Reform Act of 1978.   Was this one?***
    No.  The 14th PPP was set out in section 103  of the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, Pub. L. No. 115-73, 131 Stat. 1235  (October 26, 2017).***Who was Dr. Chris  Kirkpatrick and why is the law named after him?***
    Dr. Kirkpatrick was a clinical psychologist at a Veterans Administration  medical center in Wisconsin.  He had complained  about the over-prescription of opiates to patients receiving care at the center,  which he alleged made it difficult for him to treat them, and about other  issues, and was later fired for reasons he considered false and in retaliation  for his whistleblowing.  As a  probationary employee, he did not have substantive appeal rights to MSPB  from his termination (although if he had sought relief from the Office of  Special Counsel (OSC), he could then have come to the Board with an individual  right of action (IRA) appeal based on his whistleblowing).  He committed suicide very soon after being terminated.  The bill that  ultimately became this Act was introduced by a Senator from Wisconsin in his  memory, partly to fulfill what was said to be his wish that others in his  position be protected from retaliation.   In addition to creating the 14th PPP, the law also increased  protection for whistleblowers by requiring that an agency head propose  discipline against a supervisor who is found to have retaliated against a whistleblower,  that the agency head give priority to a request for transfer made by an  employee on whose behalf the MSPB has granted a stay, and that the Comptroller  General of the United States submit to Congress a study of retaliation  against probationary employees.***Given its origin,  is the prohibition limited to employees at the Department of Veterans Affairs?***
    No.  The statute contains two  “titles.”  Title I applies to “Employees  Generally” and Title II applies to “Department of Veterans Affairs  Employees” specifically.  The new PPP is  part of Title I.  Further, although  the events that eventually led to this law’s enactment took place at that  agency, the placement of the prohibition at 5 U.S.C. § 2302 makes it  applicable to every agency and employee covered by that section.  While the Department of Veterans Affairs (DVA)  has access to more medical records than most agencies because of its mission regarding  veterans for whose treatment it is responsible, the prohibition concerns  accessing the medical records of employees and applicants for employment, not  patients.  Agencies that do not have  a medical function as part of their mission have access to medical records of  employees and others as part of their personnel records when such employees occupy  positions with medical requirements or have requested reasonable  accommodations, leave under the Family and Medical Leave Act of 1993, or sick  leave, or for other reasons.  Thus, the  proscription extends far beyond the DVA to all agencies covered by 5 U.S.C. § 2302.***So, if a  supervisor accesses my medical records is that a PPP?  What about if he then tells someone else what  those records say?***Accessing  medical records may be done for proper purposes, so it is not a PPP simply  to access such records.  Even disclosing  to another individual the contents of those medical records may not  constitute the commission of the 14th PPP.   The prohibition is that a person with the requisite authority may not  “access the medical record of another employee or an applicant for employment,  as part of, or otherwise in furtherance of, any conduct” that constitutes  another PPP.  Thus, not only must the  authority access the medical record of an employee or applicant, but he or she  must also do so in connection with the commission of another PPP.***Is there Board or  court case law on what situations constitute the 14th PPP?  What actions might constitute such a violation?***The  provision became effective at the end of October of 2017, and has not yet  been tested before the MSPB.  Because the  Board is prohibited by law from issuing advisory opinions, 5 U.S.C. § 1204(h), we cannot state with  certainty what situations may give rise to the finding of the 14th PPP.  However, it would not be difficult to  envision a situation in which an agency official accesses an applicant’s medical  records to “willfully obstruct” the applicant’s right to compete for employment  (PPP 4).  It is also possible to envision  a situation in which a supervisor or other agency official accesses an  employee’s medical records to deny him a promotion or other job-related  advantage based on the information in that record, even though the employee can  safely and competently perform the job.   Such actions might be found to constitute disability discrimination (PPP 1).  It is likely that as time goes on, there will  be situations in which the MSPB and the courts may find—or reject—claims that  various supervisory or managerial actions constitute the 14th PPP.***Has accessing  medical records been a punishable offense in Board law until now, even in the  absence of a PPP?***
    Yes.  The Board has frequently recognized  the confidentiality of medical records and the seriousness of unauthorized  access to them.  For example, in *Smith v. Department of Veterans Affairs*, 93 M.S.P.R.  424 (2003), the Board held that it was a  reasonable punishment to remove an employee for disclosing sensitive and confidential  information about a veteran who was a patient and worked at the facility where  the employee worked.  In *Hall v. Department of Veterans Affairs*, 67 M.S.P.R. 622 (1995), the Board pointed out that 38 U.S.C. § 7332 prohibits disclosing information about certain medical  conditions on the agency's own initiative except  as authorized by the statute.  Due to the  sensitivity of such information, it may be disclosed only if “authorized by an  appropriate order of a court of competent jurisdiction granted after  application showing good cause therefor.”   Relatedly, as noted in *Doe v.  Pension Benefit Guaranty Corporation*, 117 M.S.P.R. 579 (2012), government‐wide regulations at 5 C.F.R.  § 339.301(b) ‐ (d), limit agencies’  authority to order medical examinations to three situations:  (1) An individual has applied for or occupies  a position which has medical standards or physical requirements or which is  part of an established medical evaluation program; (2) an employee has applied  for or is receiving continuation of pay or compensation as a result of an  on-the-job injury or disease; or (3) an employee is released from his or her  competitive level in a reduction in force and the position to which the  employee has reassignment rights has medical standards or specific physical  requirements which are different from those required in the employee's current  position.  Thus, even absent a PPP  addressing access to medical records, the Board’s cases and laws and  regulations have recognized the serious concerns that employees and others have  in maintaining the confidentiality of their medical records and health‐related information.***May I bring a  claim that my agency committed the 14th PPP directly to the MSPB?***
    Only in certain circumstances.  That is,  if you have been removed, demoted, suspended for more than 14 days, or  been the subject of any other personnel action which is appealable to the  Board, you may claim that the agency violated the 14th PPP when it took  the action against you.  In such a case,  the agency would have the burden of proving the factual basis for the charge  against you (in an adverse action) or the propriety of denying the benefit you  are seeking (such as restoration to duty after military service or time on  workers’ compensation, etc.), but you would then have the burden of proving by  a preponderance of the evidence that the real reason for the agency’s action  constitutes this PPP.  Exceptions to this  rule are appeals under the Veterans Employment  Opportunities Act of 1998,  the Uniformed  Services Employment and Reemployment Rights Act of 1994, and the Whistleblower  Protection Acts, wherein you may not claim discrimination, whistleblowing,  or that the agency committed a PPP.  If  the personnel action that you believe constitutes PPP 14 is not appealable  to the Board, you may file a complaint with the OSC to determine whether OSC  will seek to persuade the agency that the action should be reversed, or will help  you by prosecuting the case for you before the MSPB.  If OSC does not prosecute the case for you,  you may not then file an IRA appeal with the Board.  In addition, of course, an agency may take an  appealable action against an employee for committing the 14th PPP.***If I bring an  action before the MSPB and am not satisfied with the result, can I seek  review elsewhere?***
    Yes.  Board decisions are appealable to  the U.S. Court of Appeals for the Federal Circuit pursuant to 5 U.S.C. § 7703(a)(1), (b)(1).  In addition, if you claim prohibited discrimination  under 5 U.S.C. § 2302(b)(1), you may seek review in  a U.S. District Court and then the U.S. Court of Appeals for the numbered  Circuit in which the district court is located.   In a very limited number of cases, *certiorari* may be granted by the U.S. Supreme Court following the decision of one of the  Circuit Courts of Appeals.


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