The feds have issued guidance on the interplay of two complicated laws enacted by Congress in the name of privacy, FERPA (college students) and HIPAA (medical information). The intersection between the two was the subject of considerable attention at the time of the Virginia Tech massacre, carried out by a mentally disturbed student whose deteriorating condition had been kept a secret from many interested parties because of the laws. [HIPAA Blog]
Posts Tagged ‘HIPAA’
October 27 roundup
- NYC judge tosses injury suit against Lawyers Athletic League filed by a player on Milberg’s team [NYLJ]
- Kentucky fen-phen lawyers Gallion and Cunningham disbarred [Lexington Herald-Leader]
- Worker’s comp doc claims he noticed abnormal lab result and told patient to check with his primary doc. Patient didn’t and harm ensued. Malpractice? [CalLaw Legal Pad, KevinMD, Happy Hospitalist]
- Federalist Society publishes text of Judge Dennis Jacobs’s speech on pro bono, but Chemerinsky digs in rather than apologize [PoL]
- Are HIPAA privacy rules suspended during emergencies? No, and what lovely situations that’s likely to cause [HIPAA blog, more]
- One of the more unusual personal injury lawyer websites is “like a touchy-feely hybrid of Myst and The Office” [Above the Law]
- Gold-collar criminal defense work? McAfee decides $12 million too rich a sum for defending CFO Prabhat Goyal [Bennett & Bennett, Greenfield]
- Sounds promising: “Texas Supreme Court decision could end peremptory strikes in jury selection” [SE Texas Record]
Privacy law and criminal investigations, cont’d
Following up on our discussion of HIPAA and the New York therapist murder, police have reported a break in the case, arresting a mentally disturbed man who has told investigators of having been committed to a mental institution 17 years ago by Dr. Kent Shimbach, the doctor who was injured in the rampage (and who shared offices with the therapist who was killed, Kathryn Faughey). Dr. Shinbach apparently has told investigators that he did not recognize the assailant and has no memory of any contact with him in the past.
Helen Smith (“Dr. Helen”) at Pajamas Media recalls the case of Vallejo, California psychologist Ira Polonsky, Ph.D., “who was shot and killed by what family members believe was a former patient. Unfortunately his death is still a mystery. Why? Blame the confidentiality laws in California:”
…police have been stymied in pursuing that line of investigation because of confidentiality laws protecting Polonsky’s patient records and appointment books.
Vallejo police detectives are in touch with a court-appointed attorney – a “special master” – who is working with the county court to see if there can be at least a limited review of protected records, but neither police nor court officials will comment on progress in that area.
And Hans Bader takes note of a recent Volokh thread discussing cases in which it seems Massachusetts privacy law was construed to prohibit the taping of ransom discussions with kidnappers (Commonwealth v. Jackson, 1976, mentioned in passing here) and a Florida court considered (but rejected!) the argument that a murderer’s privacy was infringed by his victim’s having tape recorded the murder.
High cost of health privacy laws, cont’d
More HIPAA madness? On Wednesday, in a crime that cast a chill through the mental health community, a Manhattan therapist was brutally slaughtered in her office by a man whose actions seemed consistent with those of a current or former patient with a grudge. The assailant escaped on foot, and although his image had been captured on surveillance tape, police were nowhere near beginning to know where to start looking for him: “Because of privacy laws, police hadn’t been able to access patient records as of late yesterday, sources said.” (New York Post, Feb. 14)(via Bader). On medical privacy laws and the Virginia Tech rampage of Seung Hui Cho, see Jun. 16, 2007.
More: Commenter Supremacy Claus says not to blame HIPAA, which has an exemption for police reports.
Friday morning sequel: This morning’s New York Post sticks with the original story and fleshes out the HIPAA role somewhat:
The hunt for the savage beast who butchered an Upper East Side therapist has hit a roadblock – because detectives can’t access her patients’ medical records under federal privacy laws, The Post has learned.
Police believe the meat-cleaver-wielding psycho who killed Kathryn Faughey on Tuesday night inside her office on East 79th Street could be the doctor’s patient – and need access to her records to identify him.
But police sources said because of the Health Insurance Portability and Accountability Act, signed by President Bill Clinton in 1996, investigators are having a hard time gaining access to those records.
“A case like this gets complicated because of medical privacy protections,” a source close to the investigation told The Post yesterday.
The federal law states that doctors, hospitals and health-insurance companies must protect the privacy of patients – even in a murder investigation – and that only through the use of subpoenas can authorities hope to obtain such information.
Police sources said investigators have applied for a subpoena, but have yet to receive it. Even if the subpoena is issued, patients can sue to keep their records private. …
[D]etectives have tried to get around the law by tracking down patients through sign-in sheets at the building’s front desk and through surveillance cameras in the lobby, sources said.
(Murray Weiss, Jamie Schram and Clemente Lisi, “Vexed by ‘Slay File’ Madness”, New York Post, Feb. 15). My Times (U.K.) article on the problems posed by health privacy laws is here.
January 4 roundup
- Housekeeping service in Florida proclaims, “We Speak English”. So will they get sued? [Smerconish/Phila. Daily News]
- Update: Dad who long ago walked out on his family won’t get chunk of estranged son’s $2.9 million 9/11 fund benefit [NY Post (link fixed now); earlier]
- Did Illinois state’s attorneys advise Marine sergeant complaining of car vandalism that there wasn’t much point trying to recover from the suspected offender since he was a lawyer? [Blackfive via Zincavage and many readers; Kass/Tribune] And what kind of trouble might the lawyer be in if he suggested slipping the repair costs along to an insurer? [Patterico commenters, Goldberg/NRO Corner correspondent] More: Bainbridge.
- Not long after American Lawyer pronounces the demise of securities class actions, we learn they may be back on a cyclical upswing [August TAL; new Stanford Clearinghouse]
- If rising tide of outrage leads to abolition of peremptory challenges, many lawyers won’t have anyone to blame but themselves [Reed]
- Brooklyn judge’s presenting of box of candy to plaintiff among grounds for reversal of $14 million brain-damaged infant verdict [NYLJ]
- Yet more health privacy madness: “HIPAA is adversely affecting our ability to conduct biomedical research” [Reuters on JAMA study via Kevin MD; relatedly, Karvounis/HealthBeat]
- People kept tearing down no-swimming signs at much-used park in Bellingham, Wash., and you know what’s going to happen next without our having to tell you [AP/Seattle Times]
- Two Illinois judges in drunk-driving accident that broke other driver’s leg draw mere reprimand with “no consequences other than public embarrassment” [Post-Dispatch]
- Suit against Avvo lawyer-rating suit dismissed on First Amendment grounds [Seattle Times, Post-Intelligencer; earlier]
- Saves her friend’s life, then sues her [seven years ago on Overlawyered]
October 15 roundup
- Louisiana attorney general Foti, under fire over his attempt to prosecute Dr. Anna Pou in Katrina deaths, faces tough re-election challenge [Times-Picayune, Lafayette Advertiser; earlier]
- Classic “Hershey’s liable to obese Americans” print satire now has a short audio version [Onion radio]
- Criticize alternative medicine at your peril? U.K. libel law helps stifle an opponent of homeopathy [Orac]
- Tennessee trial lawyers’ lobbyist comes under harsh public spotlight following lurid crackup of House Judiciary chair Rob Briley [Nashville Scene; earlier]
- Invoking CAFA, judge throws out coupon settlement in Sharper Image air purifier class action [Krauss @ Point of Law]
- In 4-4 split, Supreme Court lets stand a ruling that NYC must pay private school tuition for Hollywood exec’s ADHD son though he wouldn’t give city program a try; issue likely to return soon [NYTimes; earlier]
- Veteran journalists Patrick Dillon and Carl Cannon ink deal for book on rise and fall of Lerach tentatively titled Circle of Greed [WSJ law blog]
- Unforeseen consequences dept.: plan for retirement community catering to gays may be derailed by workings of antidiscrimination law [Miller, Independent Gay Forum]
- HIPAA an impediment to doctor-patient emails? [CareCure Forums via KevinMD]
- Update on fraudulent liens filed by prison inmates to harass court personnel (Mar. 31, 2004): system strikes back with extra 20-year term for one offender [Texas Lawyer]
- EEOC says Massachusetts employer must accommodate eyebrow-ring-wearing employee who claims membership in “Church of Body Modification” [five years ago on Overlawyered]
Chemerinsky legally entitled to job?
The UC Irvine-Erwin Chemerinsky debacle has been covered extensively in the blogosphere — Walter has a roundup of links over at Point of Law. One thing is for certain, though: regardless of the wisdom of UC Irvine’s actions, it clearly has the right to choose its dean based on any (non-discriminatory) criteria it wants. If the university isn’t happy with Chemerinsky’s ideological viewpoint, it obviously has the right to choose someone more compatible, right?
Well, maybe not, as Eugene Volokh explains. Under the wonders of California employment law, the mere fact that someone has abhorrent views doesn’t give you the right to fire him, and it doesn’t give you the right to decide not to hire him:
In fact, if the statute is read according to its text, coupled with the way the California Supreme Court has interpreted it, then all California employers must retain employees despite their controversial off-the-job statements, even when those statements are incendiary and alienate the employer’s customers, donors, employees, or others.
[…]
So it seems that an employer’s policy (written or not) that it won’t hire or won’t retain employees who make public statements that alienate members of the public — or more specific policies applying to, say, racist statements, religiously bigoted statements, sexist statements, and the like — would be illegal.
Employers would thus not only be barred from firing employees because they are Democrats or Republicans. They would also be barred from refusing to hire Klansmen or people who have made racist, anti-Semitic, or anti-Catholic statements, even when the candidate is being hired for a high-profile public contact or leadership position, and when many of the employer’s customers would be deeply alienated by the person’s statements (past or future).
That one may well fall under a “damned if you do, damned if you don’t” situation; hiring an outspoken Klansmen will expose employers to potential liability for creating a racially hostile work environment.
And as a special employment-law related bonus: the AP explains that companies that might want to try to save money on health insurance by financially incentivizing employees to stay healthy have to worry about HIPAA (if they provide too much in the way of incentives), and the Americans with Disabilities Act (if employees can convince a court that their obesity is a disability).
August 27 roundup
- More critics pile onto new Medicare “we won’t pay for errors” policy [Orac, Chris Rangel, Universal Health, MedPundit; earlier; plus KevinMD]
- Wisconsin lawmaker wants to address perceived lawyer oversupply by cutting funding to the state’s law school [NLJ]
- What would great authors of Britain’s past have thought of pub smoking ban? [AN Wilson, Telegraph; one response; more]
- As Texas trial lawyer Mikal Watts gears up Senate run, his GOP critics turn for ammunition to a certain website [ChronBlog via Half Empty]
- Holder in due course? Pa. man has left fragrant ethical trail buying up bounced checks and demanding their payment in court [NJLJ]
- One reason for slow adoption of electronic medical records: docs’ fear of wider malpractice exposure [Medical Economics via KevinMD]
- “He knows there is irony in a criminal defense attorney being driven out of the city because of crime” [Baltimore Sun]
- More evidence that Endangered Species Act perversely encourages landowners to make their habitat inhospitable [Adler @ Volokh]
- If you recognize one of your hospital patients as a wanted fugitive, don’t let HIPAA keep you from calling cops [MedRants first, second post]
- Teenager may face year in jail for recording 20-second movie clip [Wired “Gadget Lab” via Harsanyi and Reynolds]
- Behind a judge’s order that GM pay $1.2 billion over a drunk driver’s crash [eight years ago at Overlawyered; case’s eventual settlement]
July 9 roundup
- Judge Ramos disallows settlement of Citigroup directors derivative suit: deal had met defendants’ needs, plaintiff’s lawyers’ too, but not shareholders’ [PDF of decision courtesy NY Lawyer]
- Drove a golf cart into the path of his car as it was being repossessed, jury decides he deserves $56,837 [MC Record]
- Per ACOG, 92 percent of NY ob/gyns say they’ve been sued at least once [NY Post edit; more]
- New British online-gambling law could trip up some virtual-world/massively multiplayer online games [GamesIndustry.biz]
- Good news for bloggers: Iowa-based site can’t be sued in New York just because it answered questions from NY reader and accepted NY donations [Best Van Lines v. Walker, Second Circuit; McLaughlin]
- Another great idea from Public Citizen: let’s not use new drugs till they’ve been on the market for seven years [Pharmalot via KevinMD]
- After conviction of Mississippi trial lawyer Paul Minor in judicial corruption scandal, squabbling drags on over sentencing [Jackson Clarion-Ledger]
- Conservative public interest law firms “can win some big cases [but] are notorious for lacking follow-through” [Tushnet, L.A. Times]
- Contestants in Australian business dispute probably wound up spending more on the litigation than had been at stake in the first place [Sydney Morning Herald]
- New at Point of Law: New Hampshire governor vetoes trial lawyers’ bill; global warming litigation to be bigger than tobacco?; the Times notices HIPAA;
- It’s my emotional-support dog, and my lawyer says you have to let it into your store [eight years ago on Overlawyered, before these stories started getting common]
New Times column — the costs of health privacy
My new column in the Times (U.K.) is on the many costs of HIPAA, the federal law which even now prevents institutions from releasing the Virginia Tech psychopath’s health records (privacy rights extend after death) and played a notable role (along with the Buckley Amendment/FERPA) in restricting the chances for relevant actors to compare notes on his symptoms of madness before it was too late (Walter Olson, “Could less rigid privacy laws have prevented the Virginia tragedy?”, Apr. 20).
More: Dr. Wes has some additional HIPAA thoughts, as does Jeff Drummond at HIPAA Blog.