dentists – Techdirt (original) (raw)

CBP, DHS Using Quasi-Scientific Guesswork To Turn Adult Immigrants Into Minors

from the and-vice-versa dept

Our nation’s immigration agencies wield a considerable amount of power. So much power, in fact, that they’re free to dump incoming immigrants off the space-time continuum at will. If a CBP officer decides a person isn’t the age they say they are, they can alter the person’s age so it matches the officer’s beliefs.

How does the CBP accomplish this neat little trick? Well, oddly, it involves X-rays. A recent episode of This American Life details the surreal nature of this CBP-induced time warp — one it inflicted (repeatedly!) on a 19-year-old Hmong woman coming to the United States to reunite with her fiance.

Yong Xiong was questioned by Customs officers at the Chicago airport. The CBP officer thought she was being trafficked and didn’t believe the birth date on her passport. After a round of questioning meant to determine whether or not Yong was being trafficked, the CBP officer arrived at the conclusion she was, despite the officer marking “No” on ten of the eleven trafficking indicators.

So, how does the CBP try to determine someone’s age when officers don’t believe the person or the documents in front of them? They call in a dentist. Yong’s teeth were x-rayed to determine her age. This may involve science on the front end, but the back end is mainly educated guesswork.

From This American Life’s Nadia Reiman:

The dentist took the X-ray. No one would talk to me on the record about this, but because it’s the government, there is a massive paper trail. And not just in Yong’s case. I’m going to go deep on these tooth X-rays for a second, so bear with me. They’re used in all kinds of immigration cases, not just trafficking. And a lot rides on the results. If you’re under 18, you have more protections. You get put into a shelter instead of a detention center. It’s harder to get deported.

But tooth X-rays are just not a very precise way to determine someone’s age. The way it works is they measure how developed the roots of your molars are, and then based on that, the dentist can determine your age, but only within a range, usually around five years. So these X-rays can’t tell you the difference between a 17-year-old and a 19-year-old. The same teeth might belong to a 15-year-old or a 20-year-old.

In Yong’s case, the CBP was sure she was being trafficked. Since the officer already thought that, the CBP leaned toward the lower end of the dentist’s estimate.

In the documents, the dentist writes, quote, “The range of possible ages is 14.76 to 19.56 years.” In other words, it’s totally plausible that Yong could be 19 as she’s been saying.

Instead of accepting this as evidence that might back the birth date on Yong’s passport, the CBP agent gave her a new birth date: January 1, 2000. This instantly turned Yong into a minor and the CBP placed her in a juvenile shelter. She continued to tell staff and counselors she was 19 and needed to head to Minneapolis to meet with her family and fiance. The staff told her they couldn’t do anything about this because the paperwork said she’s a minor.

This isn’t true. They are able to make changes to these dates, but no one at this detention center was willing to do that. Well… they weren’t willing to change her birth date to make her an adult again. Instead, as Yong approached her fake 18th birthday — January 1, 2018 — the DHS decided to make her even younger:

It turns out ORR [Office of Refugee Resettlement] resubmitted the X-rays of Yong’s teeth to a second dentist who concluded Yong could be anywhere between 15 and 20 years old. After which, ORR did change her birth date. But they used the lowest end of the range possible. The documents say DHS, the agency that oversees everything related to immigration, told them to. Her new, new birth date is now September 1, 2002.

A wrist X-ray was performed to determine “bone age.” The results said Yong was most likely 18. The doctor interpreting them for the DHS decided this simply wasn’t true and issued a conclusion saying Yong is 15, but with “advanced bone age.”

After 14 months in a juvenile detention center, Yong is finally released by the DHS… as a minor, into the custody of her aunt. A couple of weeks later, the DHS stated to her lawyer it would no longer “contest” the “contents” of her passport. The single contested “content” was Yong’s true birth date. The US government graciously allowed Yong to become 22 again, after 14 months of treating her like a teenager.

Yong is not an isolated case. The DHS routinely uses wide-ranging estimates to arbitrarily assign birth dates to immigrants and asylum seekers. For whatever reason, CBP tends to add years to males and subtract them from females. This results in people like Yong being treated as minors for months or years. In other cases, it turns unaccompanied minors into adults and places them in adult detention facilities.

This report from The Conversation detailing the x-ray “aging” of two unaccompanied teens says CBP’s reliance on this process is illegal.

Federal law dictates that X-rays in cases where adult age is not obvious be used only in concert with other methods, such as verification of documentation and interviews. This makes sense because X-rays only provide orienting information rather than a definitive answer.

The recent court cases demonstrate that ICE has broken the law by exclusively relying on X-rays for age determination, ruling that the teens be released back into ORR’s custody as minors. Are these cases isolated or illustrative of a bigger problem? A 2008 report by the Office of Homeland Security found that it was not only unclear how often ICE needed to resort to X-rays to assist with age determination, but unknown how common it was for them to rely solely on X-ray results. Without accurate numbers, there is no way to know how widespread the practice is or how to improve the process.

Nothing has improved since then. And part of the reason nothing has improved is that the same Congress that expressed concern about the DHS’s reliance on X-rays to determine immigrants’ ages pushed the DHS to continue to rely on the X-rays.

In 2007 and again in 2008, the House Appropriations Committee called on the Department of Homeland Security to stop relying on forensic testing of bones and teeth. But it was the Trafficking Victims Protection Reauthorization Act of 2008 that declared age determinations should take into account “multiple forms of evidence, including the non-exclusive use of radiographs.”

Apparently, the “non-exclusive” part of the law is being ignored. Nothing but an X-ray and a CBP officer’s hunch turned 19-year-old Yong Xiong into a 17-year-old. And nothing but an X-ray made her even younger… even as she aged 14 months right in front of the government’s eyes.

Filed Under: age detection, cbp, dentists, detention, immigration, minors, x-rays

Stung By Yelp Reviews, Health Providers Spill Patient Secrets

from the HIPAA-HIPAA dept

Burned by negative reviews, some health providers are casting their patients’ privacy aside and sharing intimate details online as they try to rebut criticism.

In the course of these arguments — which have spilled out publicly on ratings sites like Yelp — doctors, dentists, chiropractors and massage therapists, among others, have divulged details of patients’ diagnoses, treatments and idiosyncrasies.

One Washington state dentist turned the tables on a patient who blamed him for the loss of a molar: “Due to your clenching and grinding habit, this is not the first molar tooth you have lost due to a fractured root,” he wrote. “This tooth is no different.”

In California, a chiropractor pushed back against a mother’s claims that he misdiagnosed her daughter with scoliosis. “You brought your daughter in for the exam in early March 2014,” he wrote. “The exam identified one or more of the signs I mentioned above for scoliosis. I absolutely recommended an x-ray to determine if this condition existed; this x-ray was at no additional cost to you.”

And a California dentist scolded a patient who accused him of misdiagnosing her. “I looked very closely at your radiographs and it was obvious that you have cavities and gum disease that your other dentist has overlooked. … You can live in a world of denial and simply believe what you want to hear from your other dentist or make an educated and informed decision.”

Health professionals are adapting to a harsh reality in which consumers rate them on sites like Yelp, Vitals and RateMDs much as they do restaurants, hotels and spas. The vast majority of reviews are positive. But in trying to respond to negative ones, some providers appear to be violating the Health Insurance Portability and Accountability Act, the federal patient privacy law known as HIPAA. The law forbids them from disclosing any patient health information without permission.

Yelp has given ProPublica unprecedented access to its trove of public reviews — more than 1.7 million in all — allowing us to search them by keyword. Using a tool developed by the Department of Computer Science and Engineering at the NYU Polytechnic School of Engineering, we identified more than 3,500 one-star reviews (the lowest) in which patients mention privacy or HIPAA. In dozens of instances, responses to complaints about medical care turned into disputes over patient privacy.

The patients affected say they’ve been doubly injured — first by poor service or care and then by the disclosure of information they considered private.

The shock of exposure can be effective, prompting patients to back off.

“I posted a negative review” on Yelp, a client of a California dentist wrote in 2013. “After that, she posted a response with details that included my personal dental information. ? I removed my review to protect my medical privacy.”

The consumer complained to the Office for Civil Rights within the U.S. Department of Health and Human Services, which enforces HIPAA. The office warned the dentist about posting personal information in response to Yelp reviews. It is currently investigating a New York dentist for divulging personal information about a patient who complained about her care, according to a letter reviewed by ProPublica.

The office couldn’t say how many complaints it has received in this area because it doesn’t track complaints this way. ProPublica has previously reported about the agency’s historic inability to analyze its complaints and identify repeat HIPAA violators.

Deven McGraw, the office’s deputy director of health information privacy, said health professionals responding to online reviews can speak generally about the way they treat patients but must have permission to discuss individual cases. Just because patients have rated their health provider publicly doesn’t give their health provider permission to rate them in return.

“If the complaint is about poor patient care, they can come back and say, ‘I provide all of my patients with good patient care’ and ‘I’ve been reviewed in other contexts and have good reviews,’ ” McGraw said. But they can’t “take those accusations on individually by the patient.”

McGraw pointed to a 2013 case out of California in which a hospital was fined $275,000 for disclosing information about a patient to the media without permission, allegedly in retaliation for the patient complaining to the media about the hospital.

Yelp’s senior director of litigation, Aaron Schur, said most reviews of doctors and dentists aren’t about the actual health care delivered but rather their office wait, the front office staff, billing procedures or bedside manner. Many health providers are careful and appropriate in responding to online reviews, encouraging patients to contact them offline or apologizing for any perceived slights. Some don’t respond at all.

“There’s certainly ways to respond to reviews that don’t implicate HIPAA,” Schur said.

In 2012, University of Utah Health Care in Salt Lake City was the first hospital system in the country to post patient reviews and comments online. The system, which had to overcome doctors’ resistance to being rated, found positive comments far outnumbered negative ones.

“If you whitewash comments, if you only put those that are highly positive, the public is very savvy and will consider that to be only advertising,” said Thomas Miller, chief medical officer for the University of Utah Hospitals and Clinics.

Unlike Yelp, the University of Utah does not allow comments about a doctor’s medical competency, and it does not allow physicians to respond to comments.

In discussing their battles over online reviews, patients said they’d turned to ratings sites for closure and in the hope that their experiences would help others seeking care. Their providers’ responses, however, left them with a lingering sense of lost trust.

Angela Grijalva brought her then 12-year-old daughter to Maximize Chiropractic in Sacramento, Calif., a couple years ago for an exam. In a one-star review on Yelp, Grijalva alleged that chiropractor Tim Nicholl led her daughter to “believe she had scoliosis and urgently needed x-rays, which could be performed at her next appointment. ? My daughter cried all night and had a tough time concentrating at school.”

But it turned out her daughter did not have scoliosis, Grijalva wrote. She encouraged parents to stay away from the office.

Nicholl replied on Yelp, acknowledging that Grijalva’s daughter was a patient (a disclosure that is not allowed under HIPAA) and discussing the procedures he performed on her and her condition, though he said he could not disclose specifics of the diagnosis “due to privacy and patient confidentiality.”

“The next day you brought your daughter back in for a verbal review of the x-rays and I informed you that the x-rays had identified some issues, but the good news was that your daughter did not have scoliosis, great news!” he recounted. “I proceeded to adjust your daughter and the adjustment went very well, as did the entire appointment; you made no mention of a ‘misdiagnosis’ or any other concern.”

In an interview, Grijalva said Nicholl’s response “violated my daughter and her privacy.”

“I wouldn’t want another parent, another child to go through what my daughter went through: the panic, the stress, the fear,” she added.

Nicholl declined a request for comment. “It just doesn’t seem like this is worth my time,” he said. His practice has mixed reviews on Yelp, but more positive than negative.

A few years ago, Marisa Speed posted a review of North Valley Plastic Surgery in Phoenix after her then?3-year-old son received stitches there for a gash on his chin. “Half-way through the procedure, the doctor seemed flustered with my crying child. …,” she wrote. “At this point the doctor was more upset and he ended up throwing the instruments to the floor. I understand that dealing with kids requires extra effort, but if you don’t like to do it, don’t even welcome them.”

An employee named Chase replied on the business’s behalf: “This patient presented in an agitated and uncontrollable state. Despite our best efforts, this patient was screaming, crying, inconsolable, and a danger to both himself and to our staff. As any parent that has raised a young boy knows, they have the strength to cause harm.”

Speed and her husband complained to the Office for Civil Rights. “You may wish to remove any specific information about current or former patients from your Web-blog,” the Office for Civil Rights wrote in an October 2013 letter to the surgery center.

In an email, a representative of the surgery center declined to comment. “Everyone that was directly involved in the incident no longer works here. The nurse on this case left a year ago, the surgeon in the case retired last month, and the administrator left a few years ago,” he wrote.

Reviews of North Valley Plastic Surgery are mixed on Yelp.

Health providers have tried a host of ways to try to combat negative reviews. Some have sued their patients, attracting a torrent of attention but scoring few, if any, legal successes. Others have begged patients to remove their complaints.

Jeffrey Segal, a one-time critic of review sites, now says doctors need to embrace them. Beginning in 2007, Segal’s company, Medical Justice, crafted contracts that health providers could give to patients asking them to sign over the copyright to any reviews, which allowed providers to demand that negative ones be removed. But after a lawsuit, Medical Justice stopped recommending the contracts in 2011.

Segal said he has come to believe reviews are valuable and that providers should encourage patients who are satisfied to post positive reviews and should respond — carefully — to negative ones.

“For doctors who get bent out of shape to get rid of negative reviews, it’s a denominator problem,” he said. “If they only have three reviews and two are negative, the denominator is the problem. … If you can figure out a way to cultivate reviews from hundreds of patients rather than a few patients, the problem is solved.”

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for their newsletter. Reposted from ProPublica via its CC-BY-NC-ND license.

Filed Under: dentists, doctors, hipaa, medical practitioners, patient info, patients, privacy, reviews
Companies: yelp

Dentist Who 'Invoiced' Patient For Negative Reviews, Getting Slammed On Yelp

from the these-things-have-a-way-of-coming-back dept

You may recall that, yesterday, we wrote about the class action lawsuit filed against dentist Stacy Makhnevich. Makhnevich used ethically and legally dubious forms from the organization Medical Justice, to demand the future copyrights on any reviews a patient might write about her. Then, she used the DMCA process to try to take down negative reviews on Yelp and DoctorBase. When that didn’t work, she threatened the patient, Robert Lee, with a lawsuit, and started sending him invoices for infringement, at $100/day. None of this addressed Lee’s original complaint — that Makhnevich failed to submit the documents he needed to get reimbursed from his insurance company for an expensive procedure.

Of course, as with any typical Streisand Effect situation, all this ended up doing is leading to a hell of a lot more attention to the situation and the negative comments. But, these days, things can go even further than just driving more attention to content someone wanted disappeared. It can lead to even further backlash — especially on sites involving reviews — as we’ve seen with authors who get dinged for questionable actions. If you go take a look at Yelp’s page for Stacy Makhnevich the one star reviews are flowing in… many of them calling her out for what she did. Oh, and Robert Lee’s review, which kicked this whole mess off… is Yelp’s “featured” review at the top of the page. Her current total review rating is at a star and a half. It used to be much, much better.

Some of the reviews are entertaining. I liked this one, which notes “I heard you have to bring your lawyer with you to the dentist’s office.”

For future reference, if you’re that concerned with your online reviews, perhaps just do the best you can and respond to customer complaints promptly. Trying to whitewash complaints seems likely to backfire in big, bad way.

Filed Under: class action, copyright, dentists, dmca, doctors, reviews, stacy makhnevich
Companies: medical justice

We’ve talked about Medical Justice a few times. This is the highly questionable outfit that gives doctors and dentists forms that these medical professionals then require patients to sign in order to get treated. The forms require the patients to pre-emptively hand over the copyright on any future reviews they might write about that medical professional. The idea is that if the doctor or dentist doesn’t like the review, they can then just use the DMCA to take it down, claiming that the review infringes on their copyright. Yes, this is incredibly sleazy. This clearly has nothing to do with copyright, but rather it’s a use of copyright law to try to censor criticism. There are both ethical and legal problems with this… and the legal problems are about to be discussed in court.

Public Citizen has filed a class action lawsuit against a New York dentist, Stacy Makhnevich, who not only used the Medical Justice forms, but then sent one of her patients invoices, supposedly billing him $100 per day for having posted comments about her online. As Paul Alan Levy explains:

Our individual client, Robert Lee, had a bad experience, not with Makhnevich?s dental work, but with her billing and her failure to submit the documents he needed to get reimbursed by insurance. After his repeated efforts to get her office to do what they were supposed to do, he posted complaints on Yelp and on DoctorBase. Makhnevich threatened to sue him over the posts, and sent DMCA takedowns, but no doubt to her surprise, not only did the patient not remove his comments, but both Yelp and DoctorBase defied the threat of infringement liability, telling Makhnevich that they regarded her agreement with the patient as illegal. Undeterred, Makhnevich sent Lee invoices purporting to bill him $100 per day for the continued copyright infringement. Makhnevich also hired a lawyer who sent additional threats of litigation, but rather than continue to wait to be sued, Lee has now filed suit for a judgment declaring the agreement void, an injunction preventing Makhnevich from imposing the agreement on other patients, and a notice to all Makhnevich patients informing them that they are no longer restrained by the agreement.

A few interesting things come out in the lawsuit. First, the fact that both Yelp and DoctorBase defied the DMCA takedowns. Both companies deserve kudos for that. Standing up to bogus DMCA takedowns is pretty rare these days, because the risk of getting roped into a costly lawsuit is just too high. In this case, the fact that there had been so much news about Medical Justice and it’s questionable concept, and both Yelp and DoctorBase were aware of this earlier, certainly helped. Still, standing up to such threats deserves praise.

Second, the lawsuit notes that not only is this copyright abuse, but the DMCA takedown notices appear to violate HIPAA — the federal Health Insurance Portability and Accountability Act — which is supposed to guarantee privacy for patient info.

In September, 2011, on the letterhead of Aster Dental, a member of Dr. Makhnevich?s staff sent takedown letters under the Digital Millennium Copyright Act (?DMCA?), 17 U.S.C. § 512(c)(3), to Yelp and to DoctorBase, asserting that Dr. Makhnevich owned the copyright in Lee?s Commentary pursuant to the Agreement. Defendants warned Yelp and DoctorBase that, if they did not remove the posts immediately, they would lose the immunity that the DMCA otherwise provides Internet Service Providers against monetary liability for copyright infringement. In violation of HIPAA, these takedown notices disclosed plaintiff?s height, weight and birth date, as well as his picture and his home address

The lawsuit also makes the claim that these comments, even if the copyright on them has been assigned, would still be protected as fair use. But, more importantly, it argues that these agreements in the first place constitute “copyright misuse” noting that the agreements:

constitute unclean hands and, with respect to such purported acquisition and assertion, constitute copyright misuse in light of the means by which defendants purportedly acquire the copyrights and because the purpose of such acquisition and assertion of copyright is to suppress truthful commentary concerning defendants and matters of public concern.

No matter what, this should be an interesting lawsuit to follow. As Levy explains, beyond the legal arguments, there is an important public policy aspect to this lawsuit:

The purpose of copyright law is to encourage creative expression by providing a temporary monopoly (sadly, less and less temporary) that enables those whose expression is marketable to reap financial rewards for their work. At the same time, copyright law avoids giving any monopoly on facts or ideas. Agreements like the one at stake in the Makhnevich case turn copyright law on its head by taking advantage of the fact that, as a practical matter, ideas and facts are articulated through copyrightable expression; hence anything that a patient writes about a doctor or dentist is likely to have sufficient originality to be copyrighted. The Medical Injustice agreements allow professionals who use them to suppress the underlying opinions and facts, not to reap financial rewards from the expression and not to encourage further creativity. This is a misuse of copyright law and in our view it needs to be stopped.

However, from a future policy perspective, it appears that this lawsuit has already been a win. Within a day of the lawsuit being filed, Medical Justice has announced that it’s retiring the agreement… and that it probably should have earlier. It also claims that it’s telling doctors to stop using them. We’ll see if that actually happens… and if anyone else jumps into the fray instead.

Filed Under: class action, copyright, dentists, dmca, doctors, reviews, stacy makhnevich
Companies: medical justice