Thankful For Hoarders

I don’t like doing housework.  I have tried hiring housekeepers, but only found that I had to clean the house the day before the housekeeper came so that she wouldn’t hurt herself tripping over stuff on the floor.  I don’t think my homeowner’s insurance would cover injuries sustained by a housekeeper.  And I wouldn’t want someone to get hurt because I left a shoe in the hallway.  Without a housekeeper’s impending visit to inspire me to clean up, I have found that things aren’t always as clean as they should be. 

My children shared my dislike for housework.  To get them to help me clean the kitchen, I had to threaten them with health department inspections.  “We’ll end up on the streets,” I’d say in a menacing tone.  “If you leave dirty dishes out, the health department will come and shut us down.”  While the threat motivated them to help with chores, it has had an unexpected negative impact on my children.  They are not afraid of policemen, dentists, or nurses with needles, but they turn pale and jittery when a public health sanitarian walks in the room. 

These days when I need something to prompt me to clean up, I just watch a Hoarders show.  I’m nowhere near as messy as the “stars” of Hoarders, but I know that if I don’t clean up soon, the TV cameras and psychologists may show up.  I’ve even taped some of the episodes in case the show gets cancelled.  Like the people on Hoarders, I hate to throw anything out.  I’m always afraid I’ll need it as soon as it’s gone.

A few months ago, I had a client who, like me, hates to throw anything out.  Her desire to hang onto things saved her license to practice as a health care provider.

My client’s licensing board sent her a letter threatening to take her license because of an event that had occurred almost 15 years ago.  Courts in other states have ruled that there is no time limit on claims filed by licensing boards.  I was concerned that any records that could exonerate my client may have been lost or shredded.  Just as my anxiety level began to soar, my client told me not to worry.  She believed she had copies of all the documentation related to the issue.

Shortly thereafter, she sent copies of every record that had anything to do with the event.  Those records proved that she had done nothing wrong.  I got the information to the licensing board and the Board dropped its case against my client.  

Some licensure disputes can cost thousands of dollars to litigate.  By hanging onto her records all those years, my client was able to resolve her problems with the Board for a couple hundred dollars. 

Laws require all of us to keep certain records for specific periods of time.  The IRS advises taxpayers to keep records for seven years.  But, taxpayers should note that the IRS can prosecute suspected fraud at any time. Lawyers must keep client files for six years after the client’s case is closed.  Dentists have to keep records for ten years.  Physicians may not ever destroy immunization records.  Hospitals must store medical records of an adult patient for eleven years after the patient is discharged. 

Professionals and businesses often keep records longer than required by state law.  They want to be sure they have necessary records in the event of a malpractice case or other lawsuit.  In North Carolina, most claims that can be brought by adults have to be filed within ten years.  It is wise to keep records concerning children at least until the child is twenty-one.

Because licensing boards can prosecute cases at any time, professionals should carefully consider how long to hold onto records.  Since we can store records electronically, we no longer need warehouses for paper records.  Yet, the dangers of electronically storing confidential information are significant.  In an environment where computer hackers can invade the Defense Department, White House and Federal Reserve, we have to admit that our efforts to protect information are unlikely to withstand an attack from a skilled thief. 

I started my law practice in 1981.  Until recently, I had never destroyed a client file.  Then, after considering the dangers of a confidentiality breach, I got rid of records that were more than ten years old.  Sure enough, it wasn’t long before a client I had represented in the early 80’s called.  She needed a copy of a traffic record in order to clear up a passport problem.  The DMV no longer had the record.  And, sadly, neither did I.  I’m not sure whether she was ever able to resolve the passport issue, but the experience taught me something important.  You see, I was right.  The minute you get rid of something, you find that you need it.

God Stop

Young lawyers quickly learn that Clerks of Court know more law than many law professors.  Accordingly, when I began my law practice, I would occasionally call our local Clerk if I couldn’t find the answer to a thorny problem. 

One day, I came up with a way to resolve an estate issue with minimal time and effort on my part.  It would save me a great deal of aggravation and would save my client significant money.  But as I considered my brilliant idea, a feeling of foreboding came over me.  I began to wonder why no other lawyers had come up with my genius plan.  Something was wrong, but I couldn’t put my finger on it.  That afternoon, I happened to be in Hillsborough and decided to drop by the Clerk’s office.

As I explained my plan to the Estate Clerk, she shook her head in dismay.  She said the idea was a “No-No.”  “A ‘no-no’?” I asked.  “Yes,” she answered. “Could even get you sued.”  She then went through a lengthy explanation, citing the Code Hammurabi, Mordecai’s Law Lectures, and the British common law as to why my plan would not fly.  Dismayed, I mentioned that I had a feeling I was going to get into trouble with that idea.  “You just had a ‘God Stop’”, she said.  “It’s when God sends a message to you to stop.  Be alert to those feelings and trust them.”

Many years later, I had been exploring hand weaving.  One summer, members of a Scottish clan – let’s call it “Clan X” – asked me to demonstrate tartan weaving at their annual gathering.  I agreed and began to research the clan.  To my delight, I found the pattern for the clan’s tartan.  It was beautiful.  How awesome it would be to weave the clan’s own tartan at their gathering.  In fact, I could weave up some clan scarves to sell there.  About then, the old foreboding hit.  Paying attention to the “God Stop,” I looked more carefully at the pattern.  It was a new tartan.  More research indicated that it was copyrighted in the U.S.  Not wanting to get sued, I dropped my get rich quick scheme and put an older tartan on the loom to take to the gathering.

I had barely set up my weaving demo when an irritating, officious looking woman stormed into my booth accompanied by two grumpy men.  “What tartan are you weaving?” she rudely demanded.  “Good morning to you as well,” I replied.  “This is the Ancient Napier tartan.  Isn’t it lovely?”  She glared and responded, “You’re lucky it’s not the Clan X tartan. Part of my job for the Clan is to be sure no one violates our copyright.  If you had been weaving our tartan, you would be in big trouble right now.”  I thanked her for her warm welcome and excused myself to tend to my exhibit.  She appeared pretty frustrated to have failed in her plan to trap an unwary weaver.  She made a critical comment about the quality of my work and stormed off.

Fortunately, the remainder of the day was great.  I found the other members of Clan X to be friendly and charming.  I sold most of the weaving I had brought to the gathering and had almost forgotten the snarky copyright cop as I began packing up my loom and shuttles.  Then, hearing a commotion, I looked up.  There she and her buddies were again – this time looking a bit uncomfortable.  “We were wondering if you’d be willing to weave some Clan X tartan for us.  We’ve had to special order it from Scotland.  It’s a rare tartan and they don’t typically offer it for sale.  It takes them forever and we have to deal with customs.  We noticed that you weave tartan placemats.  We haven’t been able to find placemats in our tartan at all.”

Although I was glad that the quality of my weaving had miraculously improved, I explained that I was already swamped at work.  I would not be able to take on another project any time soon.  I thanked them for their interest and quickly headed back to Chapel Hill.  On the way home, I said a prayer of thanks for the “God Stop” that may have saved me from a copyright infringement lawsuit.  I also offered up a prayer of thanks for the Clerk who gave me some good advice all those years ago.

Communication Failure - Angus Part 3

Earlier that day, I had picked up a manikin from my weaving store.  We no longer needed him at the store, but I hadn’t decided what to do with the “dummy.”  I had grown fond of him over the years and had named him Angus.  He looked like a ferocious warrior in his regimental jacket and Prince Charles Edward Stewart kilt.  Selling him seemed like a betrayal after all we’d been through together, but there was no place to store him at home.  And he certainly didn’t belong in an uptown law office.  There was some space in the janitor’s cleaning supplies closet, so with deepest apologies, I wedged Angus in the dirty room in front of the upright vacuum cleaner.  I didn’t want him to frighten the janitor, so I put a warning sign on the outside of the closet door.  It stated, “Manikin in closet.”  I had considered putting up a sign that said, “Dummy in closet,” but I feared the janitor might take it the wrong way.

As the day wore on, I forgot about Angus.  Because of constant interruptions, I had not finished a brief due at the Court of Appeals.  The deadline for filing was the next day.  Frustrated, I had no choice but to stay late to complete the brief.

I worked my way through law school as a janitor/maid for a home and a couple of office buildings in Chapel Hill and Carrboro.  Back then, banks did not consider young, female law students to be a good credit risk, so there were no student loans available.  I really grew to hate the job.  I didn’t mind emptying the trash or the vacuuming or dusting.  But at the end of the day, cigarette butts and ashes emit a nasty stench that would stick to me   no matter how carefully I cleaned the ashtrays.   Dirty bathrooms acquire equally offensive odors and stains that assault both the eyes and nose.  Cleansers reek of chlorine and always managed to get on my clothes.  Those years taught me to have great sympathy for the cleaning crew.

My law office janitor was an elderly scarecrow of a man with toothpick arms and legs. A graying stubble always shadowed his face.  His overalls covered dirty, ragged shirts and his well-worn boots were splattered with splotches of paint.  I never knew much about him, but he always seemed hyper-active and a bit jumpy.  He never smiled, but knowing the joys of his profession, I didn’t take his grumpiness personally.  

As my office was in downtown Chapel Hill, I didn’t feel very safe working alone after dark.  Wanting to finish the brief and get home as soon as possible, I was totally focused on my work when the janitor arrived.  Concentrating on my brief, I didn’t hear him come in the office, walk down the hall, or open the door to the cleaning supplies closet.  But I certainly heard the blood-curdling scream that followed when he ran into Angus. 

My first thought was that a deranged criminal was gutting someone with a serrated butcher knife.  Total panic set in as I imagined the bloody scene that must be taking place just down the hall.  I desperately wanted to call for help, but couldn’t think of the phone number for 911.  To add to my confusion, the scream was quickly followed by a long stream of high pitched cussing.  It was then that I recognized the voice of the janitor.  Fearing that he must be having some sort of a seizure, I rushed out to help.

He trembled with anger as he stood screaming at me.  His death grip on the closet door was probably the only thing that kept him from collapsing.  I was afraid of getting too close as he was clearly in a rage. A collection of dangerous brooms and mops were at his right hand.

As he continued to curse at me, I figured out that he had not expected to find a huge, menacing Scotsman facing him when he opened the closet door.  When the yelling finally quieted somewhat, I asked him why he had not read the sign on the door?  It clearly stated, “Manikin in closet.”  In reply, the janitor asked, “What the  **** is a ** *** manikin?”  Thankfully, I caught myself before answering, “It’s a dummy.”  I just pointed at Angus and said, “That’s a manikin.” 

I stumbled back into my office and looked at the brief.  I was still shaking from the encounter with Angus and the janitor and I knew that I probably couldn’t finish anything that night.  But, I decided to read the brief once more before going home.  It was then that I noticed all the “henceforth’s”, “whereas’s,” “heretofore’s” and “thereto’s” scattered across the pages. 

I had learned an important lesson that night.  When trying to communicate, it’s important to choose words that your reader can understand.   I took a few minutes to delete all the legalese I could find in the brief.  I certainly didn’t want to confuse the Court of Appeals.  Perhaps the brief would even be good enough that I could take another “win” with me as I went into the “hereinafter.”  And, I really needed to find Angus a home.

Patterns - HIPAA Prosecutions Increase

Usually I love patterns.  Quilt patterns, weaving patterns, and patterns in math and science fascinate me.  “The Code” is a BBC television show that explores patterns in nature.  It has captivated me for hours.  (I know there were only three shows, but I found the reruns on YouTube).  If you study a pattern, you can often predict what will happen when you next see that pattern.  For example, if you notice a State Trooper parked on the side of I-40 and you see that you are going over 80 mph, it’s likely that you will next see flashing lights, hear a siren, and be relieved of a substantial amount of cash.  Recently, I found an even more upsetting pattern while studying HIPAA prosecutions.

In 2005, North Carolina passed a law that requires all businesses to notify customers when the business suffers a security breach of customer information.  In 2009, the federal government passed a similar law requiring health care providers to notify patients of security breaches affecting patient information.  Providers must also report certain breaches to the federal government.  The law gave state Attorneys General authority to prosecute HIPAA violations.

In 2010, a Massachusetts hospital hired a company to erase computer tapes with medical information on 800,000 patients.  It shipped several boxes of the unencrypted back-up  tapes to the company.  Only one of the boxes arrived at its intended destination.  No one ever found the other boxes.  In compliance with breach notification laws, the hospital reported the breach to the government.  The state Attorney General’s office responded by initiating a HIPAA prosecution against the hospital.  Eventually, the case settled for $750,000 in penalties. 

In another case, thieves stole a laptop containing unencrypted patient records maintained by a Massachusetts Eye and Ear Clinic.  After the clinic filed a breach report, the HIPAA police fined the clinic $1.5 million and required it to retain an “independent monitor” of its security practices.  The clinic had never conducted the security risk analyses required by HIPAA.  Its policies governing portable devices were “inadequate.”

BlueCross BlueShield of Tennessee also felt the sting of a breach report.  On 57 unencrypted hard drives, the company had recorded customer service calls that included patient names, Social Security numbers and medical information.  BCBS stored the hard drives at a leased facility.  Thieves stole the drives.  As required by law, BCBS filed a breach notification report.  The HIPAA police rode onto the scene and hit the company with a $1.5 million penalty.  BCBS must also meet numerous administrative requirements in the future.  

Apparently, the federal government is even willing to go after state agencies for HIPAA violations.  The Alaska Department of Health and Social Services filed a breach report stating that thieves had broken into a DHSS employee’s car and stolen a USB drive containing unencrypted patient information.  Based on the breach report, the HIPAA police began an investigation.  Alaska had to pay $1.7 million in penalties and has to comply with numerous provisions to improve its security standards.  Where was Sarah Palin when they needed her?

The feds have stated that the breach reporting laws are an “important enforcement tool.”  What an understatement!  The reports serve as detailed confessions of HIPAA violations.  With those reports and hundreds of regulations, standards, and guidelines that only lawyers who are computer experts can understand, prosecution should be a piece of cake.

Yet, we can learn from the above cases.  First, encrypt all patient/customer data.  Be sure to encrypt emails that transmit patient information, including xrays.  Second, make sure that any person or agency that has access to your patient information has signed a business associate agreement as required by HIPAA.  Third, if you sustain a breach, immediately notify your attorney.  DO NOT try to file a breach report without legal advice – unless you have a few million dollars to throw away.  Fourth, be extremely careful in how you destroy patient records that are no longer needed.  If you ship them to a facility for destruction, be sure that you have checked out the facility and have a business associate agreement with it.   

If you study the federal government’s HIPAA website, you will see that there have been more breach notification reports than there are stars in the sky.  Accordingly, the HIPAA police have hired a private corporation to help with prosecutions.  It paid the company  millions of dollars in 2012.  It seems to me that leveling multi-million dollar fines against an overburdened health care industry and against states that are already drowning in debt may not be the best solution to the problem of privacy rights violations.  Perhaps someone in Washington needs to take a look at this.  Wait – never mind – that’s how we got into this mess in the first place.

( See, I do love patterns. Even my dishcloths have patterns.)