Justice Department "undermines" medical privacy protections [priv]

[Declan McCullagh <declan () well com>]

As a thought experiment, consider: Could medical privacy have been 
protected in other ways than the incredibly crude and blunt instrument 
of HIPAA? How about simple, tried-and-tested contracts, and state tort 
law? How about reforming the tax code so it eliminates the weird way 
health insurance is treated?

Those solutions might have costs of their own, true, but one benefit 
they would offer would be to eliminate today's situation when one 
bureaucratic proclamation has such a far-reaching effect.

We've covered some of the problems with HIPAA before:
http://www.politechbot.com/p-01771.html
http://www.politechbot.com/p-03416.html
http://www.politechbot.com/p-04964.html

-Declan


-------- Original Message --------
Subject: Justice Department  undermines medical privacy protections
Date: Tue, 7 Jun 2005 20:13:18 -0400 (EDT)
From: Peter Swire <peter () peterswire net>
To: declan () well com

Declan:

For your list, if you like:

1.  Robert Pear article in the NY Times today.  It discusses an Office of
Legal Counsel opinion that finds that almost all individuals are immune
from criminal prosecution under the HIPAA privacy law.  At
http://www.nytimes.com/2005/06/07/politics/07privacy.html

2.  The Office of Legal Counsel opinion, signed on June 1 and now
available at the CDT site, at
http://www.cdt.org/privacy/medical/20050601hipaa.pdf.

3.  A guest editorial I wrote for the Center for American Progress,
analyzing the opinion, and showing why it is both bad law and bad policy,
at http://www.americanprogress.org/site/pp.asp?c=biJRJ8OVF&b=743281.

In talking with other lawyers who do HIPAA compliance, I have repeatedly
heard that the possibility of criminal enforcement has been the single
biggest engine in having insurers and providers take the law seriously.
The new Justice Department opinion almost entirely removes the threat of
HIPAA criminal prosecutions.  As discussed in my editorial, it goes far
toward making HIPAA into a voluntary privacy standard.

Peter


Prof. Peter P. Swire
Moritz College of Law of
   the Ohio State University
John Glenn Scholar in Public Policy Research
(240) 994-4142, www.peterswire.net

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