Law Commons^™

Hacking Hipaa: "Best Practices" For Avoiding Oversight In The Sale Of Your Identifiable Medical Information, Riyad A. Omar

Journal of Law and Health

In light of the confusion invited by applying the label "de-identified" to information that can be used to identify patients, it is paramount that regulators, compliance professionals, patient advocates and the general public understand the significant differences between the standards applied by HIPAA and those applied by permissive "de-identification guidelines." This Article discusses those differences in detail. The discussion proceeds in four Parts. Part II (HIPAA’s Heartbeat: Why HIPAA Protects Identifiable Patient Information) examines Congress’s motivations for defining individually identifiable health information broadly, which included to stop the harms patients endured prior to 1996 arising from the commercial sale of …

The Limits Of Medical X-Pertise: Gender Markers In A Pandemic, Heron Greenesmith, Andy Izenson

Faculty Scholarship

The world changed drastically in 2020. The pandemic has far reaching consequences, and so too do the current civil rights movements and the struggle for gender justice and liberation. This Article seeks to describe a moment in time, a moment of doubt of how one 's gender and race will predict one 's ability to survive the pandemic-not simply COVID-19, but the pandemic writ-large and all the wrenches it has thrown into the health-care machine. How do those of us standing at the edge of a gender revolution navigate these waters? Will our health be the price we pay for …

J Mich Dent Assoc February 2020

The Journal of the Michigan Dental Association

Every month,The Journal of the Michigan Dental Association brings news, information, and features about Michigan dentistry to our state's oral health community and the MDA's 6,200+ members. No publication reaches more Michigan dentists!

In this issue, the reader will find the following original content:

• A cover story on the 2020 MDA Annual Session
• A feature covering student perspectives on the Opioid Crisis
• News you need, Editorial and regular department articles on MDA Foundation activities, Dentistry and the Law, Staff Matters, Headquarters Report, and component news

This issue also includes articles reprinted with permission:

• “Muscle Deprogramming: A Source of Confusion”, …

The False Promise Of Health Data Ownership, Jorge L. Contreras

Utah Law Faculty Scholarship

In recent years there have been increasing calls by patient advocates, health law scholars and would-be data intermediaries to recognize personal property interests in individual health information (IHI). While the propertization of IHI appeals to notions of individual autonomy, privacy and distributive justice, the implementation of a workable property system for IHI presents significant challenges. This essay addresses the issues surrounding the propertization of IHI from a property law perspective. It first observes that IHI does not fit recognized judicial criteria for recognition as personal property, as IHI defies convenient definition, is difficult to possess exclusively, and lacks justifications for …

Health Care Held Ransom: Modifications To Data Breach Security & The Future Of Health Care Privacy Protection, Ryan M. Krisby

Health Matrix: The Journal of Law-Medicine

The article highlights the need of modification in the U.S. Health Insurance Portability and Accountability Act of 1996 (HIPAA), as the federal data breach security regulation fails to adequately protect patient data. Topics discussed include data breach security under HIPAA; need of modifications that address these inadequacies concerning ransomware; and actions by the U.S. Federal Trade Commission to provide an impetus for healthcare organizations to carry out data security modifications.

Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried

David Kaye

DNA typing has had a major impact on the criminal justice system. There are hundreds of opinions and thousands of cases dealing with DNA evidence. Yet, at virtually every stage of the process, there are important issues that are just emerging or that have been neglected.At the investigative stage, courts have barely begun to focus on the legal limitations on the power of the police to obtain samples directly from suspects and to use the data from DNA samples in various ways. Issues such as the propriety of "DNA dragnets" (in which large numbers of individuals in a geographic area …

The Fda, Congress, And Mobile Health Apps: Lessons From Dshea And The Regulation Of Dietary Supplements, Natalie R. Bilbrough

Maryland Law Review

No abstract provided.

Taking Genomics To The Bio Bank: Access To Human Biological Samples And Medical Information, Michael J. Malinowski

Michael J. Malinowski

No abstract provided.

Hiv Reporting In California: By Name Or By Number?, Nicole Kamm

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Privacy Of Elders, Michael K. Mcchrystal

Marquette Elder's Advisor

Thr right to privacy does not diminish with age. As the author suggests in the article, it becomes important and vulnerable.

Property As Control: The Case Of Information, Jane B. Baron

Michigan Telecommunications & Technology Law Review

If heath policy makers' wishes come true, by the end of the current decade the paper charts in which most of our medical information is currently recorded will be replaced by networked electronic health records ("EHRs").[...] Like all computerized records, networked EHRs are difficult to secure, and the information in EHRs is both particularly sensitive and particularly valuable for commercial purposes. Sadly, the existing federal statute meant to address this problem, the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), is probably inadequate to the task.[...] Health law, privacy, and intellectual property scholars have all suggested that the river …

Is There An App For That? Electronic Health Records (Ehrs) And A New Environment Of Conflict Prevention And Resolution, Ethan Katsh, Norman Sondheimer, Prashila Dullabh, Samuel Stromberg

Law and Contemporary Problems

Katsh discusses the new problems that are a consequence of a new technological environment in healthcare, one that has an array of elements that makes the emergence of disputes likely. Novel uses of technology have already addressed both the problem and its source in other contexts, such as e-commerce, where large numbers of transactions have generated large numbers of disputes. If technology-supported healthcare is to improve the field of medicine, a similar effort at dispute prevention and resolution will be necessary.

The Constitution Guarantees Doctor-Patient Confidentiality In Criminal Cases, David E. Clark

David E Clark

Admitting medical records against a patient in a criminal case violates the fifth amendment because a patient is compelled to tell her doctor inculpatory information. Issuing a search warrant for confidential doctor-patient records violates the right to privacy in the fourth amendment. Warden v Hayden (1967) left open an important exception allowing a constitutional doctor-patient privilege in criminal cases.

Regional Health Information Organizations: Lower Health Care Costs, Fewer Iatrogenic Illnesses, And Improved Care - What Are We Waiting For, Angela Ferneding

Journal of Law and Health

Rising health care costs have a significant impact on our economy, and medical errors pose a meaningful and costly risk to health care consumers. The adoption of information technology, including the implementation of RHIOs (Regional Health Information Organizations) and electronic medical record systems, is critical to addressing these issues. Although President Bush's vision of a NHIN (National Health Information Network)is a positive first step in governmental involvement, Congress must address the biggest challenge health care providers cite in implementing information technology: the lack of funding. The national government must demonstrate its commitment to reducing costs and improving care by committing …

Access To Medical Records For Research Purposes: Varying Perceptions Across Research Ethics Boards, Donald Willison, Claudia Emerson, Karen Szala-Meneok, Elaine Gibson, Lisa Schwartz, Karen Weisbaum, François Fournier, Kevin Brazil, Michael Coughlin

Articles, Book Chapters, & Popular Press

Variation across research ethics boards (REBs) in conditions placed on access to medical records for research purposes raises concerns around negative impacts on research quality and on human subject protection, including privacy. Aim: To study variation in REB consent requirements for retrospective chart review and who may have access to the medical record for data abstraction. Methods: Thirty 90-min face-to-face interviews were conducted with REB chairs and administrators affiliated with faculties of medicine in Canadian universities, using structured questions around a case study with open-ended responses. Interviews were recorded, transcribed and coded manually. Results: Fourteen sites (47%) required individual patient …

Taking The Sting Out Of Reporting Requirements: Reproductive Health Clinics And The Constitutional Right To Informational Privacy, Jessica Ansley Bodger

Duke Law Journal

No abstract provided.

Hippa And Patient Privacy: Tribal Policies As Added Means For Addressing Indian Health Disparities, Starla Kay Roels

American Indian Law Review

No abstract provided.

A Veil Of Genetic Ignorance - Protecting Genetic Privacy To Ensure Equality, Radhika Rao

Villanova Law Review

No abstract provided.

Data Mining And Substandard Medical Practice: The Difference Between Privacy, Secrets And Hidden Defects, Barry R. Furrow

Villanova Law Review

No abstract provided.

Hipaa-Cracy, Carl E. Schneider

Articles

The Department of Health and Human Services has recently been exercising its authority under the (wittily named) "administrative simplification" part of the Health Insurance Portability and Accountability Act to regulate the confidentiality of medical records. I love the goal; I loathe the means. The benefits are obscure; the costs are onerous. Putatively, the regulations protect my autonomy; practically, they ensnarl me in red tape and hijack my money for services I dislike. HIPAA (a misnomer-HIPAA is the statute, not the regulations) is too lengthy, labile, complex, confused, unfinished, and unclear to be summarized intelligibly or reliably. (Brevis esse laboro, …

Patients And Biobanks, Ellen Wright Clayton

Villanova Law Review

No abstract provided.

Taking Genomics To The Bio Bank: Access To Human Biological Samples And Medical Information, Michael J. Malinowski

Louisiana Law Review

No abstract provided.

Authentic Democracy: Endowing Citizens With A Human Right In Their Genetic Information, Richard Cole

Hofstra Law Review

No abstract provided.

The Evolution Of The "Patient": Shifts In Attitudes About Consent, Genetic Information, And Commercialization In Health Care, Janet L. Dolgin

Hofstra Law Review

This paper considers the importation of the notion of autonomous individuality into the world of healthcare during the last half century; it also explores the related transformation of the patient into a consumer. These developments have many beneficial dimensions. However, this paper focuses on these developments gone awry so that the result is some sort of excess. The paper describes three such excesses. It refers to the first as the elaboration of autonomous individuality and illustrates it with reference to the involution of the informed consent doctrine.The second excess is referred to as the perversion of autonomous individuality; this is …

The Privacy Standards Under The Health Insurance Portability And Accountability Act: A Practical Guide To Promote Order And Avoid Potential Chaos, Tamela J. While, Charlotte A. Hoffman

West Virginia Law Review

No abstract provided.

Litigating Medical Malpractice Cases In Oklahoma: The Aftermath Of Hipaa, Melissa A. Couch

Oklahoma Law Review

No abstract provided.

Message Deleted? Resolving Physician-Patient E-Mail Through Contract Law, Michael Mccann

Law Faculty Scholarship

This article examines the impact of e-mail on the physician-patient relationship, and how contract law can resolve the uncertainties incumbent in this nascent form of communication. Significantly, courts have yet to indicate when the physician-patient relationship begins by e-mail, or to what extent e-mail affects the duties of the relationship. Instead of waiting for judicial guidance, physicians and patients can employ specialized contracts to clarify the role that e-mail plays in their relationship. As a result, more physicians and patients will regard e-mail correspondence as a valuable means of communication, and a tool for improving the quality of health care …

The Nationalization Of Health Information Privacy Protections, Lawrence O. Gostin, James G. Hodge Jr., Lauren Marks

Georgetown Law Faculty Publications and Other Works

In Part II, this article examines the justifications for implementing comprehensive national health information privacy regulations, including the personal nature of health information and the increasing threats to personal privacy from the shift to an electronic health information infrastructure. In doing so, it looks at historical attempts by federal and state officials to regulate the use and disclosure of personal health information, and concludes that prior standards have been largely inadequate. In Part III, this article explains the new national health information privacy regulations: (1) what do they cover?; (2) to whom do they apply?; (3) how do they safeguard …

Personal Privacy And Common Goods: A Framework For Balancing Under The National Health Information Privacy Rule, Lawrence O. Gostin, James G. Hodge Jr.

Georgetown Law Faculty Publications and Other Works

In this Article, we discuss how these principles for balancing apply in a number of important contexts where individually identifiable health data are shared. In Part I, we analyze the modern view favoring autonomy and privacy. In the last several decades, individual autonomy has been used as a justification for preventing sharing of information irrespective of the good to be achieved. Although respect for privacy can sometimes be important for achieving public purposes (e.g., fostering the physician/patient relationship), it can also impair the achievement of goals that are necessary for any healthy and prosperous society. A framework for balancing that …

Informed Consent And Patients' Rights In Japan: 2001 Epilogue, Robert B. Leflar

Robert B Leflar

Japan is on a steeper trajectory toward the incorporation of informed consent principles into medical practice than the “gradual transformation” observed in a 1996 article, Informed Consent and Patients’ Rights in Japan. Among the most significant recent developments from 1996 to 2001 have been these seven: (1) the 1997 enactment of the Organ Transplantation Law permitting the use of brain death criteria in limited circumstances in which informed consent is present; (2) the strengthening of patients’ rights in clinical drug trials; (3) the continued trend toward increasing disclosure to patients of cancer diagnoses; (4) initiatives by the health ministry toward …