April 12, 2006

IGNORE THE COURTS AND LIFT THE VEIL OF PRIVACY!:

Evaluating Doctors With Medicare Data (NY Times, 4/12/06

The federal Medicare program is sitting on a trove of information that could help employers and patients decide which doctors provide the best service at the most reasonable cost. This is precisely the sort of information that President Bush has been urging the health care system to make available so that consumers can choose their doctors wisely. Yet the Department of Health and Human Services, relying on an old and dated court decision, has turned down a request for the data.

It is, of course, the opposite of their argument on wiretaps and such, but a helpful illustration of the fact that the Left reflexively opposes anything the Adminstration does.

Posted by Orrin Judd at April 12, 2006 8:27 AM
Comments

If I thought the Times was being disingenuous, and actually were trying to find a way to cut back the HIPAA medical records privacy law for their own benefit as a newspaper (since getting patient condition reports from hospitals is far tougher now), I'd be more impressed. But the Times and other liberals were the ones championing HIPAA in the first place becuase they said evil busniesses were getting looks at patient medical histories in order to reject job applications or limit medical insurance coverage. So this is just another effort to get Bush, even if the end result would basically mean a return to the rules they were railing against 5-6 years ago.

Posted by: John at April 12, 2006 9:22 AM

OJ, is that the leftists in the Dept of Health and Human Services?

Posted by: Bill at April 12, 2006 1:05 PM

Bill:

Them too, but, non, the Timesmen.

Posted by: oj at April 12, 2006 1:11 PM

Isn't the Times writer (who's political affiliation is not mentioned) actually agreeing with Bush?

Posted by: Bill at April 12, 2006 1:29 PM

No, they're criticizing the Administration for following the court decisions instead of "invading privacy" for the greater good--the opposite of their position elsewhere.

Posted by: oj at April 12, 2006 1:34 PM

Bill:

Here's a pretty simple exercise for you--might even learn something:

Present a short and simple argument that is both coherent and principled explaining how the same person (institution) could insist that where a court invents a right of privacy it must trump the public good as regards phone calls to and from known terrorists, on the one hand, but must yield to the publc good as regards individuals attempts to get the government not to reveal personal medical information.


If you can come up with one I'll leave it. I'll delete anything nonresponsive.

Posted by: oj at April 12, 2006 1:57 PM

OJ, I've noticed over the last couple days that you have a tendency to delete from these posts liberally - so I'll try to stay responsive.

1. This isn't in fact the same person that advocated that FISA should apply - as you seem to grasp by claiming that the institution of the Times is responsible for this Opinion piece.

2. The writer here claims that the argued privacy of the provider isn't/shouldn't be protected by the HIPAA laws - not the privacy of the patient. So, the argument is that the provider doesn't have legal protection to hide his/her record on practices. Balance this verses the very relevent public good of the cost/benefit for medicare.

3. In the case of the illegal wiretapping scheme, the Times editors (I believe it was the institution in that case) argued that the FISA law should be followed. No one argued that terrorists or even anyone talking to a terrorist should have some right to privacy that overrides the common good. The argument was that a warrant should be obtained before wiretapping anyone. In the case in which a government official wishes to wiretap someone but doesn't wish to reveal the particulars in open court, the FISA court should be used because it is legally the exclusive means to obtain a secret warrant.

By the way, the "court invented" privacy right in the FISA case is the 4th ammendment. In the medicare issue its a matter of seeing the providers record in the context of them receiving federal money.

It's hard to imagine how these two issues could be more dissimilar.

Regardless, I think the author of this opinion piece is wrong because the data represents the providers record on the single criteria of cost without establishing a framework to evaluate provider performance based on multiple factors such as differences in patient populations.

Posted by: Bill at April 12, 2006 2:18 PM

Bill:

See, you can't do it.


(1) The Times editorial page speaks for the Editorial staff. It's their opinions that are diametrically opposed on these two issues.

(2) By that token it would be the right of the phone company that was in question in the wiretap cases, except that they've granted permission.

(3) So ignore the courts on medical records but ask them for permission to wiretap.

(4) The Fourth Amendment makes no mention of a right to privacy.

The issue is identical except for which side the Administration is on and therefore which side the Times is on.

In point of fact, the Administration is wrong here and the Times right. The courts should be ignored.

Posted by: oj at April 12, 2006 2:30 PM

Your condescension warms my heart, oj.

Your points:

1 - I stand corrected, I had mistakenly read this as written by Robert Pear - yes it is, in fact, an editorial by the staff.

2 - The phone company is explicitly prohibited from tapping. No one is challenging that law.

3 - The courts have not specifically ruled on this case. The DHHS decided that the cited precedent applies, not the courts. The Times argues that it doesn't apply (which the courts would presumably consider), but new laws could be written if they do. Contrast this approach of openly proposing a policy, to the Bush wiretapping scheme which was performed in secret in direct violation of a law that provides *exclusive means* for wiretapping.

4 - although the word "privacy" is not in the 4th amendment, "search" is which is what a wiretap is (according to numerous supreme court precedents).

The parallels are tenuous at best. The article espouses the position set by Bush and quoted in the first paragraph.

Posted by: Bill at April 12, 2006 3:00 PM

Bill:

(2) Your doctor is explicitly forbidden from handing around your medical records as well. You keep getting confused about whose privacy is being violated. It's not the doctors and the callers. It's either doctors and phone company or patients and callers.

(3) You don't want the law to apply to one so you say it doesn't and do want it to apply to the other so say it does. That's excellent on political expediency grounds but incoherent and unprincipled.

(4) Ah, now you're back to obeying the courts. One's head spins.

The parallel is precise, you just share the partisanship of the Times.

Posted by: oj at April 12, 2006 4:38 PM
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