Alextronic Discovery
Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM

Friday, June 25, 2004

With HIPPA - The Kids are Alright  


Sarbanes-Oxley is sort of like the Who while Hippa can be analogized to the Clash.

During my freshman year in high school, The Who embarked on its first of twenty or so "farewell" or "final" tours. Today, now that John Entwistle and Keith Moon have dearly departed, Roger and Pete still seem to sell to an increasingly gullible public the "final tour" concept. We did get fooled again... and again. When will we ever catch on? Perhaps we WANT to believe that the band will just fade away... Pete certainly has not lived up to his promise to die before he gets old.

Oh, so where was I? Yeah, freshman year - Who concert. My friends and I crammed in a Bart train to the Oakland Stadium and meandered through the mullet hairdo clad crowds amidst hip flasks and pot smoke to secretly revel in the opening act. In the eighties, no one admitted that they would go to a show for the opening act. Today, however, it seems to be that you are easily spotted for the nerd that you are if you reveal that you are interested in anything but an opening act. But then again, this was the eighties. Reagan was in office. We wanted the nuclear warheads, not the pea shooters. I'm just talkin' about my generation here...

So when the Clash took the stage and Joe Strummer (may he rest in peace) belted out his trademark bark during an opening rendition of London Calling, we were besides ourselves. By the time the Who came on, we were day dreaming about our high scores on Ms. Pac Man.

Sarb-Ox, as it has grown to be affectionately called these days, has captured the minds and hearts of the EDD heads out there. And for good reason, this legislation which exponentially steps up the need for financial and corporate compliance and accountability (and hence more extensive data retention and tracking and hence more e-discovery when litigation rears its perty lil' head) is no fluffy statutory subsection here. The audits, investigations, accountability and disciplinary "teeth" that Sarb-Ox brings to the table will forever change the way this nation churns and will hopefully reduce the chances of another Enron/WorldCom/Global Crossing/Orange County...(you can stop me any time there, fellas) debacle.

But lost in the frenzy of Sarb-Ox just as the semi-sober head bangers were hopelessly mesmerized by Pete's rotating, outstretched strumming arm is HIPPA (Health Insurance Portability and Accountability Act of 1996). HIPPA, like The Clash, deserve no less respect than does Sarb-Ox. HIPPA can really rock the Kasbah.

Like Sarb-Ox, HIPPA is all about accountability. It aims to promote privacy and responsibility in the health care arena. Sarb-Ox says no more swindling grandpa out of his pension and HIPPA slaps you upside your head if you go about broadcasting which denture cream grandma uses. Before HIPPA, doctors worked like lawyers. They used a system of stare decisis. When Aunt Martha in Arkansas needed hip replacement, the hospital went ahead and contacted Aunt Bertha's hospital in Oregon who just provided her with a snazzy joint replacement of her own to pull those records so that the wheel could be reinvented. The problem was, of course, Aunt Bertha didn't know nor would she have been ecstatic to learn that her hospital was sending her records all over to be used as templates. HIPPA ended this practice - a boon for patient's privacy rights and a blow to the laid back protocol of just working from blueprints.

Now, thanks to HIPPA constitutionally based invasion of privacy actions will be on the rise. As HIPPA requires extensive documentation of the steps that any health care provider takes to ensure compliance - this is a double whammy for the ED world.

Further, HIPPA also protects health insurance coverage for workers and their dependents. It provides for coverage of pre-existing conditions when changing medical plans or going to COBRA - another discovery treasure trove when the bad faith insurance actions hit.

Finally, HIPPA imposes civil and CRIMINAL penalties for privacy violations. This is forcing hospitals and insurance companies across the nation to finally get serious about compliance and electronic records management. I can see for miles and miles will be the tune that these entities must sing.... anything less may bring about a fate similar to that suffered by Boris the Spider (if you don't get it, Google it... trust me it fits).

Litigation being brought by patients recently has involved matters where a health care professional has breached HIPPA by failing to provide a privacy log indicating all steps covered t protect the medical privacy of the patient. As these records are invariably kept (or not kept) in electronic format, the ED vendors of the world now have a true role to play within the medical world when med-mal suits were previously the only vehicle that would bridge these two disparate planets.

The ED professional can now help Dr. Jimmy streamline his review of electronic privilege laws to stave off that nagging lawsuit and his patient can sleep well at night knowing her privacy is protected by HIPPA. Everyone wins. I call that a bargain... the best I've ever had.

posted by Alexander | 12:42 AM


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