'Paper tiger' Federal Medical Privacy Law Considered Largely a Joke by California Nurse and Plaintiff in Federal Lawsuit

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Adventist hospital attorney could face ten years in federal prison for privacy violations if “sleeping giant” awakes.

Nurse Barbara Clark of Sacramento is seeking the help of Debra Wong Yang, the U.S. Attorney serving Los Angeles, apparently on advice of confidential sources at the U.S. Department of Health and Human Services (DHHS) to seek a criminal indictment against a hospital attorney.

According to Clark, a plaintiff in the federal lawsuit (see Sacramento federal court Case No.: NO. 2:05-CV-2410-FCD-KLM, Clark v. Rea), government officials requesting anonymity instructed her to pursue criminal enforcement of the Health Insurance Portability and Accountability Act (HIPAA) with the U.S. Attorney in Los Angeles in an effort to deflect attention from the nearly non-existent enforcement of the HIPAA criminal sanctions.

According to Clark nearly $4 billion dollars a year is spent by the medical community to comply with HIPAA privacy rules, largely under threat of criminal enforcement for malicious data breaches. But, she points out, to date there have been only two convictions of individuals violating HIPAA. “The industry is beginning to realize that HIPAA is a toothless tiger, the threat is gone,” Clark said.

Clark’s lawsuit claims that Hershewe, in an attempt to win a California worker’s compensation case, violated the criminal provisions of HIPAA (42 USC 1380d-6) when he published Clark’s confidential psychiatric reports to at least twenty people in a malicious manner. HIPAA criminal enforcement is the responsibility of the U.S. Department of Justice.

Dennis J. Hershewe, the primary defendant, has already been cited for “vile, conniving and despicable” legal tactics by the quasi-judicial California Workers Compensation Appeals Board (WCAB case no. 0206327; Clabough vs. Fremont Compensation Insurance Company) said Clark.

Clark has enlisted the help of Eric Drew in December 2005, a victim of identity theft who was able to persuade the U.S. Attorney for the Western District of Washington (state) to file criminal charges under HIPAA against a Seattle lab technician; the first such conviction. Since then Eric Drew has become a national spokesperson for HIPAA enforcement, appearing on MSNBC and The Geraldo Show.

The most recent federal criminal prosecution under HIPAA was against Liz Arlene Ramirez, 36, of Alamo, Texas. See http://www.usdoj.gov/usao/txs/releases/March2006/060307-Ramirez.htm

Court documents are available at http://www.barbclark.org. For general information on workers’ compensation issues see http://www.mystatefundstory.com
and Eric Drew and http://www.ericdrew.com .

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Sam Gold
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