Monday, March 4, 2013

A new piece in the Department of Psychiatry HIPAA puzzle

Back in March of 2011, Mark Rotenberg, the General Counsel for the university, responded to a complaint against Dr. Stephen Olson lodged by Mike Howard.  In his complaint, Howard wrote that Dan Markingson had never signed a HIPAA form for the CAFÉ study, and that as a result, Markingson’s privacy rights had been violated.  In his response, Rotenberg produced a signed HIPAA form that was allegedly signed by Dan Markingson.  As I wrote in a previous post, the sudden emergence of this new document was extremely odd.  If the university had the HIPAA authorization all along, why didn’t it produce it during the lawsuit brought by Mary Weiss?

Last week, Mike Howard passed along a new document, which I have posted on Scribd.  It is a HIPAA authorization for the CAFÉ study, and it comes from Markingson’s medical file at Fairview Hospital. But this authorization form has no second page – and thus no signature by Markingson. The absence of a signature page is documented by a medical records official at Fairview.  This new piece of evidence makes the HIPAA issue even more puzzling. If the signed HIPAA document produced by Rotenberg did not come from Markingson’s medical file, where exactly did it come from?

As I have mentioned in earlier posts, this is only one of many HIPAA issues with the CAFÉ study.  For one thing, the signed HIPAA form produced by Rotenberg is dated three days after Markingson was enrolled in the study.  Second, at least one other family of a CAFÉ subject has reported finding an identical but unsigned HIPAA form in the chart of their family member.  And third, that unsigned HIPAA form, as well as the one produced by Rotenberg, does not have an expiration date or event, which  is required for the authorization to be valid.

Let me finish with yet another puzzle.  The signed HIPAA form  produced by Mark Rotenberg does not have a Bates number stamped in the lower right-hand corner.  Presumably, if the form had been entered as evidence in the lawsuit brought by Mary Weiss, it would have had a Bates number stamped on it in order to identify it.  And yet it doesn’t.  Again, I am no lawyer and I can claim no special expertise in this area, but if the university had this document, wouldn’t it have been legally obligated to produce it during the lawsuit?

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