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One thing is puzzling about the Anti-Abortion rhetoric surrounding the late George Tiller. I know I heard Fox News and Bill O'Reilly in particular state that "Dr. Tiller performed abortions "for any reason" after a women's 24th week of pregnancy", but ...

Now, I'm not going to get into the pro or con of abortion. The issue I have is that it's difficult to challenge or confirm the veracity of a statement like that when it's based upon medical records you aren't allowed to read due to HIPAA restrictions. That should raise serious doubts of anyone who claims that Dr. Tiller performed abortions "for any reason" after a women's 24th week of pregnancy.

Sometimes you have to consider the audience as much as the source of such things. Maybe this argument is lost on the average person who knows very little about HIPAA, so, today, I'm choosing to look at abortion through the HIPAA lens.

HIPAA is a poorly crafted law that is meant to preserve patient privacy and medical providers must comply with the law at their expense. It has worked reasonably well for abortion seeking patients. Simply put, HIPAA requires

  1. Notifying patients about their privacy rights and how their information can be used.
  1. Adopting and implementing privacy procedures for its practice, hospital, or plan.
  1. Training employees so that they understand the privacy procedures.
  1. Designating an individual to be responsible for seeing that the privacy procedures are adopted and followed.
  1. Securing patient records containing individually identifiable health information so that they are not readily available to those who do not need them.

(my bold)

Generally, you can only release medical information to third party payers and other entities with a legitimate reason to see them, like other medical providers that see you or medical researchers (with restrictions). Anyone not employed by the physician, who is allowed to see these records, has to sign a confidentiality agreement and has to agree to be bound by HIPAA rules. It's that last item, "Securing patient records containing individually identifiable health information so that they are not readily available to those who do not need them" that gives me the most trouble in the rhetoric surrounding Dr. Tiller. Just saying or thinking the medical necessity behind a late term abortion is questionable isn't probable cause to go snooping through anyone's medical records.

So when some abortion foe says some one violated abortion law, I have doubts and ask:

  1. How do you know someone violated abortion law?
  1. Where did you get your information?
  1. Who gave it to you?
  1. How did you verify the source or content?
  1. If you did verify source and content, then a clear HIPAA violation occurred and how did you dodge the office HIPAA designee who is responsible for stopping this type of violation?

Based on the allegations spewed by Fox news over the last few years it would seem that Fox News gets people to skirt the law. They get people who have accessed the medical records appropriately to discuss the records. They tease the public with snippets of untraceable rhetoric. They haven't been prosecuted, but how does Fox News confirm or deny the allegations? When it comes to abortion, simply knowing the date of service and the diagnosis code for the abortion would be enough in most cases to ID the patient (which would be a HIPAA violation). Despite what the other side is saying, late term abortions aren't that common of a procedure. Fox isn't interested in accuracy, they want drama. Fox News doesn't need no stinkin' facts to get in the way of red meat being thrown at their viewers.

One of Fox News' talking points is about former Governor Sebelius vetoing the Kansas legislature when they passed a bill saying that Tiller had to provide the state with specific medical reasons for all of his late-term terminations. Maybe Sebelius knew (like I do) that the state law would likely be set aside by the courts because HIPAA (federal law that dictated the regulation) would supercede State Law. Maybe Sebelius knew a law meant for one person might as well be wrapped in a red shirt as far as the courts are concerned.

Another talking point surrounds a supposedly real patient who presumably wanted an abortion because the pregnancy would stop her from going to concerts. Frivolous? or are we dealing with something on the fringe? Something blown out of context? I only know one reason why a remark like that would be recorded on a medical chart and that would be to demonstrate some type of social issue like suicidal thoughts, delusions  or another form of extreme mental duress.  And we only have Fox's word that she did not have some other physical reason or that it was even considered a late term abortion.

Out of context statements that may support the anti-abortion position are reported without disclaimer. These statements are meant to inflame the anti-abortion crowd and get the sympathy of some pro-choice with restrictions folks. They don't care if the only way the statement can be verified is by violating HIPAA or a woman's 4th amendment rights. Taking quips like this from a medical record, out of context, leads to the kind of conclusions Fox News loves to promote and pro-choice advocates have difficulty challenging. It's ignorant, unsupportable and wrong. Yet, the anti-abortion crowd gets traction.

Why a women seeks to end her pregnancy is none of our business. It's private and HIPAA requires the medical provider to maintain all patients' privacy. The anti-choice advocates think they are entitled to examine the individual medical records of every woman who makes this choice and pass judgment on the reasons for her choice. That's Orwellian.

The mental gymnastics of people like Scott Roeder (who is so anti-government that he doesn't believe in paying taxes and is paranoid about his social security number) want to interrogate a woman for her reasons for ending her pregnancy are incredible. These same people would likely be infuriated if medical records detailing their treatment of chronic disease, cancer or a sexually transmitted disease were made public; but it's ok to invade a woman's abortion medical record.

Anti-abortion advocates demand their 1st amendment rights to scream and terrorize people who work at or utilize abortion clinics, but can't see they are denying women their 4th amendment right against unreasonable search when they publicize the reasons they think some women end their pregnancies. To them a woman's 4th amendment right and HIPAA are an inconvenience they hope to circumvent. They don't see the hypocrisy or irony of their position.

Interestingly it seems as if HIPAA may well fill in the blank left open by the 4th amendment in the abortion debate. Anti-abortion proponents feel it is reasonable to search anyone's medical records for improperly performed abortion procedures. Who knew that it would be HIPAA, a law co-sponsored by former Senator Nancy Kassebaum R-Kansas and a law that many medical workers find to be a total PIA, would become a safeguard of a woman's right to privacy when she seeks to end her pregnancy should the 4th amendment fail her.

That's amusing. Well, God has a sense of humor or karma "gets" irony.

Originally posted to JDWolverton on Thu Jun 04, 2009 at 12:41 PM PDT.

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Comment Preferences

  •  Teips for Rec'ing HIPAA (34+ / 0-)

    It's a surprisingly effective measure for women at a time in their livs they may need and want the most privacy.

    If a nation expects to be ignorant and free, in a state of civilization, it expects what never has and never will be. Thomas Jefferson

    by JDWolverton on Thu Jun 04, 2009 at 12:43:01 PM PDT

  •  Someone needs (17+ / 0-)

    These guys make this claim flipantly all the time.  I have met Dr. Warren Hern here in Colorado who does late term abortions.  He would never do one for "any" reason.  I found him to be a reasonable, thoughtful and forceful man.  These guys just want it to be true.  Their mantra is that under the current law, a woman in her last trimester who can't fit into her prom dress can get an abortion.  Not true.  They can't find anyone to do it.  So, what these guys need to be asked is for one documented example.  They can't provide it, because it didn't happen.  This is no different than what these guys do all the time on all sorts of subjects.  It's par for the course.  Reality doesn't work for them, so they just make it up.  But, someone needs to ask them for just one documented example.  Not "some would say" not someone said, not I heard from a reliable source.  Just one example where someone involved in the transaction says an abortion was performed in the last tri-mester for a frivilous reason.  Where's the beef?

  •  Word (9+ / 0-)

    This was the basis for the Roe v Wade decision in the first place....a woman's right to privacy. I had done repetitive online searches for statistics on the reasons for late term abortions (looking for ammo against right wing talking points), and it was nowhere to be found. Just anecdotal info. Then it hit me that the reason for my lack of findings was that this is private information, it doesn't get reported. So the probablility of the media getting these kind of statistics on one particular doctor are nil, unless they were obtained illegally. Their assertions are most likely total BS, and they know it.

    •  Good Point, plus abortion clinics might not want (2+ / 0-)
      Recommended by:
      lgmcp, CMYK

      to participate in proper peer reviewed research on the subject in this country. Too much chance of mishap.

      It possibly could be done in England or Russia, but studies done there would be of limited use with regard to the U.S. population.

      If a nation expects to be ignorant and free, in a state of civilization, it expects what never has and never will be. Thomas Jefferson

      by JDWolverton on Thu Jun 04, 2009 at 01:04:05 PM PDT

      [ Parent ]

      •  It WOULD be interesting (3+ / 0-)

        and useful, to know large-scale statistics on abortions, their methods, thier funding, their timing, and their reasons.  

        I feel quite strongly that they prove our contention that late-term abortions are NOT in any way abused, and save horrific suffering.  

        But I agree that such stats are unlikely to become reliably available.  It's become just too much of a high-stakes game, and clinics can't afford to expose themselves or their patients.  

        "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

        by lgmcp on Thu Jun 04, 2009 at 01:23:09 PM PDT

        [ Parent ]

        •  Here are some stats for abortion in general (7+ / 0-)

          Reasons U.S. Women Have Abortions:
          Quantitative and Qualitative Perspectives
          (PDF file)

          This study covered all abortions, not specifically late term, but it is useful and I quote from it regularly.

          CONTEXT:Understanding women’s reasons for having abortions can inform public debate and policy regarding abor-
          tion and unwanted pregnancy. Demographic changes over the last two decades highlight the need for a reassess-
          ment of why women decide to have abortions.
          METHODS:In 2004, a structured survey was completed by 1,209 abortion patients at 11 large providers, and in-depth
          interviews were conducted with 38 women at four sites. Bivariate analyses examined differences in the reasons for
          abortion across subgroups, and multivariate logistic regression models assessed associations between respondent
          characteristics and reported reasons.
          RESULTS:The reasons most frequently cited were that having a child would interfere with a woman’s education, work
          or ability to care for dependents (74%); that she could not afford a baby now (73%); and that she did not want to be a
          single mother or was having relationship problems (48%). Nearly four in 10 women said they had completed their
          childbearing, and almost one-third were not ready to have a child.  Fewer than 1% said their parents’ or partners’
          desire for them to have an abortion was the most important reason. Younger women often reported that they were
          unprepared for the transition to motherhood, while older women regularly cited their responsibility to dependents.
          CONCLUSIONS:The decision to have an abortion is typically motivated by multiple, diverse and interrelated reasons.
          The themes of responsibility to others and resource limitations, such as financial constraints and lack of partner sup-
          port, recurred throughout the study.

          A statistic that comes from this study that I use frequently is that a majority - 60% - of women seeking abortions already have at least one child - a jarring response to the stereotype that the typical abortion seeker is a lovely middle class white teenager who wants to fit in a prom dress. It also means that these women absolutely know what it means to have and raise a child, and the responsibility and resources required - and often women have abortions because they want to be able to protect and provide for the children they already have. 38% said they had completed their desired childbearing.

          A few respondents articulated their fears that having an-
          other baby now would force them onto public assistance,
          an outcome they wanted to avoid. For example:

          “If you think about it, OK—I get pregnant; I might not be
          financially stable. I got to take somebody’s working money
          for welfare. You know what I’m saying? Why not let me get
          out of this situation, so I could better myself so when I do
          get pregnant and have another baby, I don’t have to take
          your money, because you’re working. I’m not going to be
          working, because I’m going to be sitting on my welfare, tak-
          ing care of my baby! Why?”—21-year-old with one child, below
          the poverty line

          One lower income, divorced mother said:
          “There is just no way I could be the wonderful parent to
          all three of them and still have enough left over to keep the
          house clean and make sure the bills are paid and I’m in bed
          on time so I can be at work on time. It’s impossible.”
          —30-year-old with two children, below the poverty line

          This is a valuable quote for thinking about "health" (thanks McCain) of the mother, and considering how it intersects with public policy. The study notes that women in lower income levels are more likely to cite their health as a reason, and in the quote below is a reason why - women who need to work to care for the children they have, and who are too sick to work, have abortions.

          A woman’s concerns for her health or possible fetal health
          problems were cited as reasons to end her pregnancy by
          one-fourth of the qualitative sample. Women who felt that
          their fetus’s health had been compromised cited concerns
          such as a lack of prenatal care, the risk of birth defects due
          to advanced maternal age, a history of miscarriages, ma-
          ternal cocaine use and fetal exposure to prescription med-
          ications. Concerns about personal health included chron-
          ic and life-threatening conditions such as depression,
          advanced maternal age and toxemia. More commonly, how-
          ever, women cited feeling too ill during the pregnancy to
          work or take care of their children.

          The theme across this study is that many (3/4) of the women cite responsibility to other people as a reason for an abortion. Often it is existing children, but it could also be mother-in-the-middle situations with elderly parents. One can't help but think that some of these women would choose differently (and one can argue if that would be right or wrong) in an environment with disability pay during pregnancy, free preschool, and better access for everyone to health care. And so, I often cite this study to people who are steadfast that abortion is wrong, because there are alternatives to banning it.

          Interestingly, the abortion rate has gone down dramatically, and I feel that's because the stigma and consequences of an unexpected, unmarried pregnancy are lower than they once were. No longer will you lose a job and be shut off from opportunity - something liberals have fought for and conservatives have fought tooth and nail.

          Fry, don't be a hero! It's not covered by our health plan!

          by elfling on Fri Jun 05, 2009 at 12:02:51 AM PDT

          [ Parent ]

  •  First of all, if you just make it up (16+ / 0-)

    out of the whole cloth, there is not necessarily a HIPAA violation. Lying is typically not all that illegal, most of the time.

    Secondly, they really DON'T believe in a privacy right -- not for abortion, not for Lawrence v. Texas, and not for yours or my medical records, either.  They do, however, probably believe in one for their OWN medical records.

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Thu Jun 04, 2009 at 12:59:33 PM PDT

  •  My mind is made up, don't confuse me with facts (2+ / 0-)
    Recommended by:
    JDWolverton, mamamedusa

    Faux Noise's made-up reality fits far better with what they'd like to be true that what is actually true.

    γνωθι σεαυτόν

    by halef on Thu Jun 04, 2009 at 01:02:35 PM PDT

  •  It is all fabricated (6+ / 0-)

    "anecdotal" evidence.  Some fundy jabbering about a friend of their cousin's who got an abortion from Tiller because she didn't want any stretch marks.  They stay up nights thinking about more and more ridiculous stories because they want to offend people's sensibilities.

    "Most fools don't understand my worldview." - Ignatius J. Reilly

    by impygirl on Thu Jun 04, 2009 at 01:04:16 PM PDT

  •  yes, they are outright lies (3+ / 0-)
    Recommended by:
    lgmcp, mamamedusa, susanala

    Fox isn't getting people to break HIPAA rules, because they are making up the cases out of think air. much easier, and no law-breaking.

    This White House is way different. It's better! ~Rachel Maddow

    by catchaz on Thu Jun 04, 2009 at 01:12:33 PM PDT

  •  The only instance I can think of where they MIGHT (6+ / 0-)

    legally obtain such information, is in the case of court-ordered disclosure where an abortion provider is on trial for abuse of laws restricting abortion.  

    But even if a few such cases were found and verified, they would be meaningless statistically.  Of course zealots don't care that the virtually all late-term abortions are done for extremely pressing reasons, because to them the chance of ONE "frivolous" reason slipping through the cracks is enough.  Oddly enough, they don't seem to feel the same way about erroneous convictions in death-penalty cases.

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Thu Jun 04, 2009 at 01:20:14 PM PDT

    •  Tiller Was Acquitted in Such a Case (3+ / 0-)
      Recommended by:
      sngmama, lgmcp, mamamedusa

      And his records must have been used during the case - that is one of the uses for which HIPAA makes an exception, for law enforcement purposes. In addition, anyone can access the records for purposes of "treatment, payment and health care operations," (abbreviated TPO) under HIPAA. The last category includes things like quality assurance, so the state has easy access to any provider's medical records to ensure they are complying with existing medical standards and quality requirements.

      In short, if Tiller had been aborting for non-legal reasons, the state would likely know pretty quickly and the news would have been leaked to high heaven by the anti-choice goons.

      A government that denies gay men the right to bridal registry is a facist state - Margaret Cho

      by CPT Doom on Thu Jun 04, 2009 at 01:39:20 PM PDT

      [ Parent ]

      •  there was a huge legal fight over the records & (6+ / 0-)

        I think they were withheld. That was the basis of the law the Kansas legislature passed that Sebelius vetoed that would have required Tiller's clinic to turn over the records.

        The problem was Atty Gen Kline thought there had to be some illegal late term abortions simply due to the numbers of women utilizing the clinic's services. He used that as his probable cause to obtain the records. That assertion wasn't upheld and there wasn't a massive number of photocopied charts turned over to Kline. The records that were turned over were very specific and I don't believe any were chart notes. Then Kline lost his reelection and the income Atty Gen declined to pursue the case.

        The recent case against Dr. Tiller concerned whether he had an independent second opinion on late term abortions as required by Kansas law. Dr. Tiller was acquitted of all 19 counts of this misdemeanor by the jury in less than 2 hours. Again, no chart notes were part of this proceeding.

        Law enforcement is a reason HIPAA can be waived, but again under tight restrictions and I know of no doctor who would comply without a legal fight.

        If a nation expects to be ignorant and free, in a state of civilization, it expects what never has and never will be. Thomas Jefferson

        by JDWolverton on Thu Jun 04, 2009 at 02:53:05 PM PDT

        [ Parent ]

    •  HIPAA, public shaming and violence prevention. (4+ / 0-)

      There have been cases where medical records were entered as evidence in such trials, with identifying information scrubbed.

      Even that -- getting patient names and other identifying details removed from public view in the court documents -- required additional legal wrangling. Shaming and endangerment are both strategic to the forced childbirth crowd.

      I'm interested in knowing whether HIPAA already includes, or can be expanded to include, privacy provisions for outside of clinics. Why must we give a free pass to the very tormentors who stalk, harass and threaten law-abiding staff and patients who are accessing their right to provide and receive private medical care?

      I think that maybe if women and children were in charge we would get somewhere. -James Thurber

      by CMYK on Thu Jun 04, 2009 at 02:40:26 PM PDT

      [ Parent ]

      •  agreed. The loophole in the law is that once a (2+ / 0-)
        Recommended by:
        samddobermann, mamamedusa

        breach occurs; those who received the data illegally are not bound by HIPAA. That is a mistake. The privacy rule should be modified so that there be a remedy that is more protective of the patient's privacy rights.

        If a nation expects to be ignorant and free, in a state of civilization, it expects what never has and never will be. Thomas Jefferson

        by JDWolverton on Thu Jun 04, 2009 at 04:42:40 PM PDT

        [ Parent ]

  •  Don't you understand? (2+ / 0-)
    Recommended by:
    mamamedusa, Calamity Jean

    It is the abortion proponents who force the anti-abortionists to make up lies about who gets late term abortions and how many there are.  HIPPA is a government conspiracy to prevent the "truth" getting out- just like the aliens still held at Roswell...

    If the abortion doctors would simply say that they do hordes of late term abortions, and that not fitting into your prom dress is more than sufficient reason for a late term abortion, then the anti- crowd woudn't need to make stuff up.

  •  That was the other thing... (7+ / 0-)

    ... that hit me after Bill O'Reilly's ranting was replayed over and over...  where he was saying if Tiller hadn't been doing what he was doing, there'd be "60,000 more American citizens..."  

    The number was simply absurd. We don't KNOW how many abortions -- early or late -- a given clinic does. But even over decades of practice, it seems insane to think any single doctor or clinic would have done that many, especially late term ones, which are less than 2% of all abortions total.

    I think they're either just assuming X patients per day, per week, and total number calculated = # of abortions (ignoring the fact that Dr. Tiller also helped women through full-term pregnancies, delivered their babies, and provided the usual OB/GYN care that any woman needs).  

    Or pulling numbers out of their ass, because you're right, HIPAA is very strict on this, and it should be.

  •  There are times when (5+ / 0-)

    I think the anti-abortion crowd and the weird stories they come up with are made up.  Or the stories are reflections from their own abortions.

    I have been a PRO-CHOICE person since Roe v Wade was passed in 1973.  I was in third grade when it happened.  Even as a child I resented someone trying to tell me what was going to happen with my body.  In all those years, I have only encountered one person that used abortion instead of using normal birth control.  Even she had a limit (3) before finally discovering the pill and condoms.

    It is offensive that FOX News suggests that most women have an abortion for fun, or because they are whorish, or because they want shirk responsibility, or are evil.  It is a decision that is not taken lightly.  It is because of the narrow-minded people at FOX that more women do not come forward and tell their stories.  They fear the reaction.  After all, who wants to wake up to having rioters in your front yard because of choice you've made.

    I hope they can nail some of these a-holes through HIPPA.

    "Intolerance betrays want in one's faith." Ghandi

    by winter outhouse on Thu Jun 04, 2009 at 01:43:07 PM PDT

  •  HIPPA (2+ / 0-)
    Recommended by:
    mamamedusa, CMYK

    Unfortunately there are many loopholes in HIPPA.  Look at the HIPPA for you sign the next time you see a doctor.

    I have worked both in consulting and medicaid databases.  I have seen many records but also signed a HIPPA confidentility form for each state.  

    Also - the next time you are in a hospital take note on how many things you can see on a computer just walking down the hall .  

    •  It's worse than you think. The document you sign (0+ / 0-)

      you received about HIPAA and the privacy notice can be changed at the physician's discretion and the physician doesn't have to notify you of the changes.

      HIPAA isn't perfect, but it was sufficient for Tiller to use it to refuse to comply with Klines' subpeona when it was issued.

      If a nation expects to be ignorant and free, in a state of civilization, it expects what never has and never will be. Thomas Jefferson

      by JDWolverton on Thu Jun 04, 2009 at 03:56:16 PM PDT

      [ Parent ]

      •  Not true (0+ / 0-)

        The document you sign you received about HIPAA and the privacy notice can be changed at the physician's discretion and the physician doesn't have to notify you of the changes.

        Not true.  After a healthcare provider (not just a physician) changes their Notice of Privacy Practices, they have to notify each patient at the next service delivery that the NPP has been updated and offer a copy to the patient.  (I helped write my employer's NPP in 2002/2003, and I'm currently helping revise it.)  Healthcare payers are required to send them out to all covered individuals at the time they are changed.  

        The HIPAA Privacy Rule was a good start, because it gave us a baseline for individual privacy of healthcare information.  It was a total PITA to implement, but six years later, it is now simply how we do business.

  •  You've Been Rescued (1+ / 0-)
    Recommended by:
    mamamedusa

    "What the cynics fail to understand is that the ground has shifted beneath them"

    by ItsJessMe on Thu Jun 04, 2009 at 09:05:30 PM PDT

  •  I had a different view of HIPAA. (0+ / 0-)

    When I had to sign all those goddamn papers every time I got a prescription, I read them. It seemed to me like everybody and his dog could have access to all of my medical info if they simply said they thought I might possibly maybe have the potential to think about perhaps considering being a terrorist.

    Damned fine diary - it made me think. (ouch!)

    "There are four boxes to be used in defense of liberty: soap, ballot, jury, and ammo. Please use in that order." --- Ed Howdershelt (Author)

    by SciMathGuy on Fri Jun 05, 2009 at 04:00:04 AM PDT

  •  It is clear (0+ / 0-)

    that they either make it up, or in some cases where the information may be correct, simply do not care about the law. HIPAA has been pretty toothless until recently, when the new adminsitration decided to actually enforce it.
    HIPAA is complaint-driven, which means someone has to file a violation with HHS. Until this year, of the tens of thousands of complaints, only a handful actually got to court, and until last year there was only one conviction.
    In the early 2000's I regualary lectured healthcare groups on compliance, but after a few years when it bacame apparent that Bush's cronies were uninterested in privacy in any form, the demand dried up. Intersting to see if some of those organizations, faced with the possiblility of actual enforcement will be so sanguine.

    Michael Ehart
    Certified HIPPA Administrator
    Certified HIPAA Professional
    Certified HIPAA Security Specialist
    Graduate, HIPAA Academy Certified Instructor Program

    --Don't get to trot those babies out all that often :)

    Buy my book! The Servant of the Manthycore by Michael Ehart, foreword by Michael Moorcock http://www.mehart.blogspot.com/

    by IsraelHand on Fri Jun 05, 2009 at 01:15:29 PM PDT

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