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Notes -
Some Kind of Brouhaha over Trans Kids in Texas
I'm not actually sure what the one sentence summary is here, so bear with me. https://thetexan.news/issues/social-issues-life-family/paxton-investigates-texas-childrens-hospital-following-second-child-gender-modification-whistleblower/article_d61a2ece-2e6b-11ef-aeaa-cf9abce1d2a4.html
So two whistleblowers told Chris Rufo that a children's hospital in Texas was doing gender transitions in violation of the law, and he got Paxton to open an investigation. Ok, page five story. Their names are Ethan Haim and Vanessa Sivadge.
Again, kind of boring, but public funds were supposedly being illegally redirected to do illegal things(remember, gender modification is considered child abuse in Texas).
Here's where it gets interesting:
So the federal DOJ stands accused of, basically, witness intimidation to enable medicaid fraud. Meanwhile, the Texas government is investigating the hospital for medicaid fraud.
Now, fraudulent medical billing isn't the most interesting story in the world. But the accusations of FBI witness intimidation are https://www.usatoday.com/story/opinion/columnist/2024/06/18/whistleblower-surgeon-trans-kids-gender-affirming-care-texas/74075234007/
Our first whistleblower claims that his releases didn't violate HIPAA; no doubt he didn't air personally identifiable information in the media. But three felonies a day and all; there might well be a crime involved.
Our second whistleblower is more interesting https://nypost.com/2024/06/19/us-news/texas-nurse-alleges-fbi-threatened-her-for-blowing-whistle-on-transgender-care-of-kids/
That sounds... pretty bad.
This could get interesting, if Texas is actually(which this may be bluster, taken out of context, whatever) investigating federal agents for witness intimidation in a medicaid fraud case.
For all people seem to think of Paxton as a scalp-taking culture warrior, I'll point to the Ruger-WellsFargo fiasco here, and add that there's been absolutely bupkis since (or cfe the Media Matters investigation, still stayed forever). He's a lot better at waving red shirts than anything concrete.
[caveat: I'm more pro-trans than most here, and at least some of the covered operations and procedures seem... not especially noteworthy, whether or not I'm convinced of their effectiveness as medical procedures.]
In Haim's case, the indictment is here; while it's padded with insinuations that Haim passed identifying information to third parties, the actual statutes only require that he access the data without authorization (a2 versus a3), here). Whether the things that the indictments says 'count' as PII is complex -- technically, giving specific enough dates, procedures, and other information can still be 'identifying', hence why Scott is always neurotic about disclaiming that his patient summaries are really composites -- I'm not able to find any cases where it's actually applied in that sense.
And the use of 'malicious harm' in the indictment has serious ramifications, and I'm not able to find anywhere near this sort of situation, unless Haim was paid for his 'whistleblowing'. This paper highlights as two examples:
And it contrasts this with a compounding pharmacy that was using illegally-obtained PII to assist with bulk fraud, and was not given such an augmentation, or a UCLA lookey-loo who hadn't (yet) shared data at all:
The claim that Haim violated 42USC1320d-6(a)2 seems... fairly strong -- he had to work to get access to these files. And HIPAA's whistleblower protections are Not Great. While the law does not consider everything within its safe harbor protections as PII, whistleblowing about files or practices that you don't have direct legitimate access to is (almost) always looked at more skeptically than where someone did.
Whether that's correct as a policy is trickier. I can't find any previous examples anywhere near these charges, and Haim is pretty far from the first person to go digging for data. Nor was his release anywhere near to the UCLA scandals or Ortiz's case. Rather than embarrassing the supposedly-identifiable individuals: the harm the indictment alleges is overwhelmingly to the hospital and doctors. And the data Haim didn't remove, dates of procedures, is a pretty significant part of his claim. But in turn it's not clear that what he leaked was actually illegal: Paxton's trans-stuff-as-child-abuse were legally dubious (and nonbinding, and not really covering hospitals, and injoined even as to parents), leading state officials to work on a statutory ban, and Haim's documents were part of what drove that.
Whistleblower laws do actually protect people who wrongly-but-reasonably suspect illegal activity, if they do it right. Do it wrong, and things get murkier. Do it wrong for something you believe should be illegal... alea iacta est.
Sivadge, there's a lot less available. I don't, bluntly, trust Rufo's account as far as I could throw the man. Sivadge's own words do not strike me as a disinterested passerby who found particular practices wrong after exposure to them, but who has a general moral objection to the entire concept well before she ever encountered it; while he tries to paint a tale of "regret", it doesn't look like it's what's happened here. (Sivadge's encounter with the FBI was probably late June or early July 2023, a year after this article.)
In particular, I absolutely think that "It would be extremely unlikely, according to this expert, for the hospital to forgo this practice and, for example, cover the cost of its “gender-affirming care” program from its own budget" depended on finding an expert willing to give Rufo whatever answer he wanted. It's certainly possible that STAR flipped the law the bird, but hospitals absolutely can and do split off the exact minimum (or less) off to fuck with regulatory compliance, and the law is much less motonic that his summary. The 'expert' may not have called it impossible, but come on.
But the summary for that is, at best, the feds went fishing for anyone remotely anti-trans near the teen gender clinic to put pressure on finding Haim, which just floats back up to whether you think Haim's behavior was bad, nevermind bad enough to justify pretty aggressive chilling of speech against pro-trans policies. (Though the courts largely overlook chilling effects of investigation, unless they like the investigation's victims.) And given the extent Haim was likely to be identified by computer records, it's... difficult to see much investigative benefit to putting the screws on Sivadge. You always hope for someone to break down in tears and confess to a random crime, sure, but there's no small risk that 'investigations' can coincidentally discourage other Bad Activity that may or may not be strictly-speaking illegal or might even be first-amendment protected. That's not, unfortunately, against the law for the feds to do, though.
And the witness intimidation stuff is just bluster. The timeline's all wrong: Rufo's own version of events has Sivadge only noticing the alleged medi* fraud after her FBI interview, and only more recently has she made the claim. Yes, the feds could be trying to intimidate a witness that doesn't realize they're a witness yet, but arguing they're doing so while investigating an entirely different person's violations of an entirely different law are just too damn hard to separate from a generic 'don't make trouble'. For state laws about medical interventions to children, the FBI interview (again, probably June/July 2023 if we take Rufo's words at face value) would be before the state law was effective in 9/1/2023, and might have even been before or contemporaneous to the law being signed. So that's even more of a mess. What's left? The injoined Paxton legal opinion that wouldn't have gone anywhere?
The trouble is, under my understanding of HIPAA (and I work in the healthcare industry and have to give HIPAA trainings from time to time) if you don't need PHI to do your job, then accessing it is illegal. So even if he normally had access to that data as part of his job, accessing it for the purpose of whistleblowing would be illegal under HIPAA, since whistleblowing is not part of his normal healthcare duties or required for healthcare operations.
Yeah, that matches my understanding. And in this case, he didn't even have access to all or even most of the data normally: Haim ended his time with pediatric medicine in early 2021, Rufo's summary of the investigation pointed to 2022-2023, and the indictment says he went fishing for (what he perceived as) bad behavior with the actual access starting in April 2023.
For whistleblowers of uncontroversially bad acts, prosecutors are supposed to consider the public policy ramifications of bringing charges, but we're not there, here, even if everything Haim claims is true.
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