5 ms·

Isn't the blood drawn by a healthcare provider?

by dhimes 4y ago

ajhurliman 4y ago
That's a good question: was the phlebotomist contracted or a full-time employee of SFPD? I feel like that could be a major part of the case.
- kube-system 4y ago
  It doesn't matter. Nobody is going to have a rape kit done and then not sign a consent form to give it to the police. Giving it to the police is the entire point.
kube-system 4y ago
Maybe, but regardless, once you've shared that data with the police, they aren't bound by HIPAA.
- dhimes 4y ago
  But they shouldn't have been able to get it.
  - kube-system 4y ago
    They didn't just 'get it'. The victim volunteered the data, for the purpose of solving the crime against her. That's what a rape kit is.
- torstenvl 4y ago
  That's probably accurate-enough for the current case under discussion, but HIPAA absolutely does apply to law enforcement. Indeed, it specifically addresses disclosures to law enforcement about victim information in the regulation. 45 CFR § 164.512(f)(3). Notably, these provisions require law enforcement to do certain things in order to receive some PHI. For example, under some circumstances, law enforcement must represent that they do not intend to use the PHI against the victim. If they do so under false pretenses, fully intending to disclose that information to (for example) another detective working on a burglary case, they are guilty of a 5-year, $100,000 felony. 42 U.S.C. § 1320-d. Again, for the current case, in which it appears the complaining witness provided the sample directly to law enforcement, your comment is true enough. However, it is misinformation to say that HIPAA does not apply to law enforcement or require them to handle data a certain way.
  - kube-system 4y ago
    Those are rules that a covered entity must follow regarding disclosure to a law enforcement agency. They are not rules that law enforcement must follow. HIPAA does not obligate law enforcement to handle data in a particular way.
    - notch656a 4y ago
      Here's a message from the medical board when a covered entity disclosed my information to law enforcement: >As a detainee of the CBP under the suspicion of drug trafficking, you are subject to search (external and internal). Nurse *** was performing her duties as a nurse of a detainee under the jurisdiction of the Border Patrol (CBP) and therefore not a violation of the Nurse Practice Act That is, if you are merely detained by police (no court order, warrant, or arrest needed) any act a medical professional performs is automatically unreproachable and considered "under the jurisdiction" of the police rather than the medical care provider. Per my correspondence with the board merely being detained allows them to do whatever they like, including touching you to initiate medical care, without your consent and then share it. This is not my legal opinion but the actual response of the board in my state. ----- >That has absolutely nothing in common with this scenario. Nobody detained this woman to collect DNA samples, she volunteered it. And we're talking about HIPAA not the Nurse Practice Act. This is so far off base I think you must be trolling. Releasing patient information to police has everything to do with HIPAA. "External and internal search" has everything to do with extracting DNA from a patient. The Nurse Practice Acts typically enable boards to punish for improper violations of patient confidentiality, they needn't use the word HIPAA instead of NPA to cover activity protected by HIPAA. Surely the circumstances are not the same, but then again I never said they were. Your statement 'nothing in common' is clearly patently wrong to the point I can only guess it is a purely inflammatory statement. ------ >This person voluntarily gave the police that DNA in 2016. First of all -- I haven't made a claim that it wasn't voluntary. But now you've made the claim it is. This is quite possibly the case, but can you cite where she voluntarily gave it to police, and that she was never detained (which per my correspondence with board, merely her being detained at some point would authorize medical professionals to basically do whatever they like). If it is the way my state's board has told me, I could voluntarily go to the police, voluntarily have the hospital dna test me and then the officer could briefly 'detain' me as a witness and then take the DNA without my consent. From the article here it's not clear to me how this played out. >"Nobody detained this woman" The issue based on my correspondence with the board is that they merely could detain her at any arbitrary time in the future and then whatever a medical professional does at that point, including giving up a DNA sample, would be unreproachable. Not legal advice again, just what my board has told me.

Isn't the blood drawn by a healthcare provider?

by dhimes 4y ago

Isn't the blood drawn by a healthcare provider?

That's a good question: was the phlebotomist contracted or a full-time employee of SFPD? I feel like that could be a major part of the case.

kube-system 4y ago
It doesn't matter. Nobody is going to have a rape kit done and then not sign a consent form to give it to the police. Giving it to the police is the entire point.

kube-system 4y ago

Maybe, but regardless, once you've shared that data with the police, they aren't bound by HIPAA.

dhimes 4y ago
But they shouldn't have been able to get it.
- kube-system 4y ago
  They didn't just 'get it'. The victim volunteered the data, for the purpose of solving the crime against her. That's what a rape kit is.
torstenvl 4y ago
That's probably accurate-enough for the current case under discussion, but HIPAA absolutely does apply to law enforcement. Indeed, it specifically addresses disclosures to law enforcement about victim information in the regulation. 45 CFR § 164.512(f)(3). Notably, these provisions require law enforcement to do certain things in order to receive some PHI. For example, under some circumstances, law enforcement must represent that they do not intend to use the PHI against the victim. If they do so under false pretenses, fully intending to disclose that information to (for example) another detective working on a burglary case, they are guilty of a 5-year, $100,000 felony. 42 U.S.C. § 1320-d. Again, for the current case, in which it appears the complaining witness provided the sample directly to law enforcement, your comment is true enough. However, it is misinformation to say that HIPAA does not apply to law enforcement or require them to handle data a certain way.
- kube-system 4y ago
  Those are rules that a covered entity must follow regarding disclosure to a law enforcement agency. They are not rules that law enforcement must follow. HIPAA does not obligate law enforcement to handle data in a particular way.
  - notch656a 4y ago
    Here's a message from the medical board when a covered entity disclosed my information to law enforcement: >As a detainee of the CBP under the suspicion of drug trafficking, you are subject to search (external and internal). Nurse *** was performing her duties as a nurse of a detainee under the jurisdiction of the Border Patrol (CBP) and therefore not a violation of the Nurse Practice Act That is, if you are merely detained by police (no court order, warrant, or arrest needed) any act a medical professional performs is automatically unreproachable and considered "under the jurisdiction" of the police rather than the medical care provider. Per my correspondence with the board merely being detained allows them to do whatever they like, including touching you to initiate medical care, without your consent and then share it. This is not my legal opinion but the actual response of the board in my state. ----- >That has absolutely nothing in common with this scenario. Nobody detained this woman to collect DNA samples, she volunteered it. And we're talking about HIPAA not the Nurse Practice Act. This is so far off base I think you must be trolling. Releasing patient information to police has everything to do with HIPAA. "External and internal search" has everything to do with extracting DNA from a patient. The Nurse Practice Acts typically enable boards to punish for improper violations of patient confidentiality, they needn't use the word HIPAA instead of NPA to cover activity protected by HIPAA. Surely the circumstances are not the same, but then again I never said they were. Your statement 'nothing in common' is clearly patently wrong to the point I can only guess it is a purely inflammatory statement. ------ >This person voluntarily gave the police that DNA in 2016. First of all -- I haven't made a claim that it wasn't voluntary. But now you've made the claim it is. This is quite possibly the case, but can you cite where she voluntarily gave it to police, and that she was never detained (which per my correspondence with board, merely her being detained at some point would authorize medical professionals to basically do whatever they like). If it is the way my state's board has told me, I could voluntarily go to the police, voluntarily have the hospital dna test me and then the officer could briefly 'detain' me as a witness and then take the DNA without my consent. From the article here it's not clear to me how this played out. >"Nobody detained this woman" The issue based on my correspondence with the board is that they merely could detain her at any arbitrary time in the future and then whatever a medical professional does at that point, including giving up a DNA sample, would be unreproachable. Not legal advice again, just what my board has told me.