Matt "TL;DR GINGER" Murdock (![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png)
notdaredevil) wrote in ![[community profile]](https://www.dreamwidth.org/img/silk/identity/community.png)
maskormenace2015-06-28 05:22 pm
notdaredevil) wrote in maskormenace2015-06-28 05:22 pm
Entry tags:
- n/a | the midnighter,
- † anya borzakovskaya | n/a,
- † clark kent | superman,
- † d'artagnan | n/a,
- † dorian gray | n/a,
- † ellie langford | n/a,
- † jeff winger | wingman,
- † kate bishop | hawkeye,
- † lillian crawley-jeffries | diamond lil,
- † matt murdock | daredevil,
- † max briest | sphinx,
- † mitchell hundred | the great machine,
- † roxy lalonde | rogue of void,
- † teddy altman | hulkling,
- † will graham | wolf trap
video; giant legal post about metaplot? Giant legal post about metaplot
Some of you will have just received notice, as I have, that Unsettled imPorts will now be subjected to new restrictions and requirements. Since I doubt it is in the government's plans to explain the ramifications and implications of what they've just done, I've decided to take it upon myself, so that everyone understands exactly where we stand and what this might mean. So, to start: my name is Matt Murdock. I've been an attorney in both New York and California for nearly fifteen years, primarily a criminal defense attorney, with a fair amount of experience in cases dealing with what we could call "superpowers." I've been here well over a year now, practicing in Heropa, Florida, long enough to start to see how things work, and where the flaws in the system are.
To begin with, if you weren't aware: whether Registered or otherwise, we have, until recently, no real legal status in this country, or any other. At best by registering you could gain some representation and vote, some health insurance, leave the country for awhile. They're willing to extend you benefits, but as far as I'm aware, there's no guarantee they won't change their mind. More importantly, there's been no explicit citizenship, which would guarantee you certain rights. None of us are citizens, only "guests"— nor does it seem as though they'll be making attempts to provide us with the ability to become citizens. We don't belong to any immigrant class, since none of us have visas or anything really officially dictating the terms of our stay in this United States of America. We can't even be said to be illegal immigrants, since there's an implication there that we legally belong to another country and could be deported.
This means we have no guaranteed legal rights. Thus far, they seem to be extending us the courtesy of operating as though we possess the same rights as citizens. Whether or not they'll continue to do that is another matter. I want to be clear that this isn't something we can take for granted; at any moment, they could decide they don't want to uphold our ability to claim any kind of legal protection we might normally be guaranteed. But for the sake of argument, let's suppose they do intend to let us go on living as though we have the same rights as everyone else, outside of our ability to be an actual citizen. That's what they appear to be doing, and the implications and questions about these new regulations only have any definitive answers in that context. I understand they've recently made a change to this— but whether or not they'll actually implement it to the fullest extent of the law is another matter. It's all about how it works in practice, and how long it will actually take them to make good on this promise.
[ Settle in, boys and girls, it's going to be a long post. ]
If you've never thought about those forms you sign, when you first become a patient in a certain office: medical attention requires your informed consent. This is guaranteed by HIPAA; they must tell you the nature of what you're undergoing, all the risks and benefits and all your options. You have to voluntarily consent to receive treatment, and you have a right to seek treatment elsewhere if the policies, practices, and procedures of a certain medical establishment don't meet with your needs. Unless for some reason you can't be considered competent to make your own medical decisions, your active participation is necessary. You can't be forced to seek any kind of treatment in the first place. You are not required to seek health care at all. You are free to decline it. And this applies regardless of whether or not you're a citizen of this country.
Except, of course, that they've now declared a policy of mandatory medical examinations. Or so they say. "Mandatory" is somewhat confusing in this context, because consent laws don't allow for mandatory or compulsory health treatment of any kind. It's most unprecedented, and it's different from health requirements to maintain a specific kind of job or government service. The armed forces can require you to undergo a physical at certain times, but that's something they agree to going in. So it doesn't necessarily matter if no one twists your arm into going or anyone shows up at your door to escort you there; it's suspicious in and of itself just to make regulations that counter longstanding legal and medical practice. In these circumstances, you don't get to choose your physician. They'll be choosing one for you. Requiring anyone to seek healthcare, of any kind, let alone stipulating where they can receive it— are violations of HIPAA. There's no justification for this. Are they considering us a public health risk? There has to be some explanation for why you'd need to see a doctor every two months, practically unheard of. What is the need for that kind of information? What are they doing with that information? Depriving you of the ability to make your own choice of physician allows them to direct you to healthcare providers who will be cooperative with government requests and interest. Furthermore, given that they're selecting the physicians, I would start to suspect that your medical records will be released to the government as soon as the exams have concluded. Of course, different providers have different policies on when they will agree to disclose information, and they are legally obligated under certain conditions to release medical records, so maybe not. But to understand that possibility you have to consider under which circumstances they can and can't disclose your information without your consent, or without your knowledge.
Now, maybe there is a health risk. After all, they are required disclose information related to public health safety. And there was an outbreak of zombie plague little more than a month back. And yet, this only applies to unregistered imPorts. Are we a particular threat to public safety that needs to be evaluated? Unregistered imPorts are responsible for their own medical care. So, maybe. But then, why not institute quarantine? Why wait this long? Why not include registered imPorts as well? They might get government health benefits, but nobody is requiring them to attend mandatory health check-ins. It's very specifically targeted to a subset of the imPort population. Now, presumably none of us are part of the military here— as this only applies to unregistered imPorts— so it should be irrelevant where we fall on the scale of physical health. But there are other ways they can obtain medical records without needing your written consent to release: for law enforcement purposes, or for national security reasons. HIPAA makes exceptions for both. Again, while it's up to the medical provider whether or not they will release records when requests are made, in certain situations, they can't always refuse, and they don't necessarily always have to disclose to you that they've released your records to someone. Particularly in the issue of national security— which doesn't always come with judicial oversight. And I personally feel very, very concerned if they've begun to look at us in any light that means they might look into private health information. If they feel the need to insist that we receive care, in facilities of their choosing.
[ This would be a good place to pause, if you need a break. Because it keeps going. ]
They're also initiating stops and searches, however, so I don't think that concern is unjustified. There's no demonstrable evidence that unsettled imPorts cause problems, or that they should be targeted for further scrutiny than what we're all already subjected to. If it's just a security measure, why isn't everyone being asked to present ID? Not just unregistered imPorts, but registered imPorts as well? Why not everyone? It's not as though we're responsible for all of the problems this country faces. I'm not even sure it could be justified that there's any reason to suspect imPorts as being a security risk over the people who were born and raised here.
And here's the thing about searches. We do have to consider them searches, a kind of stop and frisk, since it doesn't apply equally to everyone. Now, normally, unless you consent, they can't proceed without probable cause or reasonable suspicion. To have reasonable suspicion, it requires a "reasonable" basis to suspect criminal activity before detaining someone. Is there a probable cause in declining to sign up to be a hero? Is there probable cause in hesitating to pledge allegiance to an unknown government shortly after arriving in an unknown universe? Of course there isn't. Furthermore, in the United States, there hasn't been a law requiring that you carry your papers or identification of any kind to go out in public. They should only be able to ask for your ID if— again— there is reasonable suspicion of committing a crime. Because if they're only asking you, and not everyone, then it's not the same as airport security, confirming that someone hasn't stolen your ticket. And plenty of people don't want to open up their lives to the government for reasons that have nothing to do with national security. Plenty of people don't want to put their lives on the line or make themselves available for that kind of duty and responsibility. If they're singling out unregistered imPorts as a particular trouble-making or suspicious group of people— that's profiling. And all of that would be a violation of the Fourth Amendment.
I'm not a policy-maker, and I never have been. I don't fault the people who register to keep jobs, keep housing, keep getting medical treatment. But I do find fault with the idea that a government that wants to cut its budget and minimize its spending on us should be investing in security measures that will take up time and man-hours with little gain. Effective enforcement of these policies will cost them millions if not billions. Regardless of whether or not they actually pull it off, they're illegal. HIPAA applies to everyone; even illegal immigrants have the right to choose their doctors. Searches without warrants or probable cause are a violtion of the Constitution of the United States. If we're "guests", expected to live here and work here, and if the laws apply to us too, then this is a violation of our rights. If they're worried about us proving a liability or a problem, perhaps they should look into finding a way to incorporate us into their already existing programs instead of leaving us in "guest" limbo. If they want cooperation, then they should stop invading our privacy. Because this— this is very much an invasion of privacy. This smacks of McCarthyism, of targeting people because they don't fall in line with the military-driven expectations for registration, and it's a worrying step back towards a police state. Lest we forget, this wouldn't be the first time they've gone in that direction.
I hope this clears up some of the issues. Obviously further analysis depends on what they do, once this really becomes implemented wide-scale and begins to take off. But as a precedent, you have a right to know what your rights typically are, or would be, and how this could apply to them. How this could potentially infringe on your rights, such as they are.
*OOC disclaimer: I am not a lawyer or even a law student, I only play one on the internet. Nor am I a medical professional or a member of law enforcement. I have researched to the best of my ability and have done my best to represent the facts as I understand them.
SOURCES:
- Consent to treatment/informed consent
- HIPAA and Health Privacy: Facts & Myths
- 45 CFR 164.512 - Uses and disclosures for which an authorization or opportunity to agree or object is not required wrt HIPAA and consent to disclose health information
- Probable cause
- US Constitution: Fourth Amendment
- Search and Seizure
- The Fourth Amendment: Reasonableness Requirement
- National Security & Medical Information
- What is reasonable suspicion?
- Wikipedia: Probable cause
- When can the police stop and frisk you on the street?
- Wikipedia: Stop and identify statutes
- Badgered Dr. Mom about citizenship wrt medical consent/HIPAA
tl;dr: I put too much effort into RP, making people get "mandatory" health checks or dictating their health care decisions is a violation of HIPAA and subjecting unregistered imPorts to searches contradicts the Fourth Amendment of the Constitution of the United States
To begin with, if you weren't aware: whether Registered or otherwise, we have, until recently, no real legal status in this country, or any other. At best by registering you could gain some representation and vote, some health insurance, leave the country for awhile. They're willing to extend you benefits, but as far as I'm aware, there's no guarantee they won't change their mind. More importantly, there's been no explicit citizenship, which would guarantee you certain rights. None of us are citizens, only "guests"— nor does it seem as though they'll be making attempts to provide us with the ability to become citizens. We don't belong to any immigrant class, since none of us have visas or anything really officially dictating the terms of our stay in this United States of America. We can't even be said to be illegal immigrants, since there's an implication there that we legally belong to another country and could be deported.
This means we have no guaranteed legal rights. Thus far, they seem to be extending us the courtesy of operating as though we possess the same rights as citizens. Whether or not they'll continue to do that is another matter. I want to be clear that this isn't something we can take for granted; at any moment, they could decide they don't want to uphold our ability to claim any kind of legal protection we might normally be guaranteed. But for the sake of argument, let's suppose they do intend to let us go on living as though we have the same rights as everyone else, outside of our ability to be an actual citizen. That's what they appear to be doing, and the implications and questions about these new regulations only have any definitive answers in that context. I understand they've recently made a change to this— but whether or not they'll actually implement it to the fullest extent of the law is another matter. It's all about how it works in practice, and how long it will actually take them to make good on this promise.
[ Settle in, boys and girls, it's going to be a long post. ]
If you've never thought about those forms you sign, when you first become a patient in a certain office: medical attention requires your informed consent. This is guaranteed by HIPAA; they must tell you the nature of what you're undergoing, all the risks and benefits and all your options. You have to voluntarily consent to receive treatment, and you have a right to seek treatment elsewhere if the policies, practices, and procedures of a certain medical establishment don't meet with your needs. Unless for some reason you can't be considered competent to make your own medical decisions, your active participation is necessary. You can't be forced to seek any kind of treatment in the first place. You are not required to seek health care at all. You are free to decline it. And this applies regardless of whether or not you're a citizen of this country.
Except, of course, that they've now declared a policy of mandatory medical examinations. Or so they say. "Mandatory" is somewhat confusing in this context, because consent laws don't allow for mandatory or compulsory health treatment of any kind. It's most unprecedented, and it's different from health requirements to maintain a specific kind of job or government service. The armed forces can require you to undergo a physical at certain times, but that's something they agree to going in. So it doesn't necessarily matter if no one twists your arm into going or anyone shows up at your door to escort you there; it's suspicious in and of itself just to make regulations that counter longstanding legal and medical practice. In these circumstances, you don't get to choose your physician. They'll be choosing one for you. Requiring anyone to seek healthcare, of any kind, let alone stipulating where they can receive it— are violations of HIPAA. There's no justification for this. Are they considering us a public health risk? There has to be some explanation for why you'd need to see a doctor every two months, practically unheard of. What is the need for that kind of information? What are they doing with that information? Depriving you of the ability to make your own choice of physician allows them to direct you to healthcare providers who will be cooperative with government requests and interest. Furthermore, given that they're selecting the physicians, I would start to suspect that your medical records will be released to the government as soon as the exams have concluded. Of course, different providers have different policies on when they will agree to disclose information, and they are legally obligated under certain conditions to release medical records, so maybe not. But to understand that possibility you have to consider under which circumstances they can and can't disclose your information without your consent, or without your knowledge.
Now, maybe there is a health risk. After all, they are required disclose information related to public health safety. And there was an outbreak of zombie plague little more than a month back. And yet, this only applies to unregistered imPorts. Are we a particular threat to public safety that needs to be evaluated? Unregistered imPorts are responsible for their own medical care. So, maybe. But then, why not institute quarantine? Why wait this long? Why not include registered imPorts as well? They might get government health benefits, but nobody is requiring them to attend mandatory health check-ins. It's very specifically targeted to a subset of the imPort population. Now, presumably none of us are part of the military here— as this only applies to unregistered imPorts— so it should be irrelevant where we fall on the scale of physical health. But there are other ways they can obtain medical records without needing your written consent to release: for law enforcement purposes, or for national security reasons. HIPAA makes exceptions for both. Again, while it's up to the medical provider whether or not they will release records when requests are made, in certain situations, they can't always refuse, and they don't necessarily always have to disclose to you that they've released your records to someone. Particularly in the issue of national security— which doesn't always come with judicial oversight. And I personally feel very, very concerned if they've begun to look at us in any light that means they might look into private health information. If they feel the need to insist that we receive care, in facilities of their choosing.
[ This would be a good place to pause, if you need a break. Because it keeps going. ]
They're also initiating stops and searches, however, so I don't think that concern is unjustified. There's no demonstrable evidence that unsettled imPorts cause problems, or that they should be targeted for further scrutiny than what we're all already subjected to. If it's just a security measure, why isn't everyone being asked to present ID? Not just unregistered imPorts, but registered imPorts as well? Why not everyone? It's not as though we're responsible for all of the problems this country faces. I'm not even sure it could be justified that there's any reason to suspect imPorts as being a security risk over the people who were born and raised here.
And here's the thing about searches. We do have to consider them searches, a kind of stop and frisk, since it doesn't apply equally to everyone. Now, normally, unless you consent, they can't proceed without probable cause or reasonable suspicion. To have reasonable suspicion, it requires a "reasonable" basis to suspect criminal activity before detaining someone. Is there a probable cause in declining to sign up to be a hero? Is there probable cause in hesitating to pledge allegiance to an unknown government shortly after arriving in an unknown universe? Of course there isn't. Furthermore, in the United States, there hasn't been a law requiring that you carry your papers or identification of any kind to go out in public. They should only be able to ask for your ID if— again— there is reasonable suspicion of committing a crime. Because if they're only asking you, and not everyone, then it's not the same as airport security, confirming that someone hasn't stolen your ticket. And plenty of people don't want to open up their lives to the government for reasons that have nothing to do with national security. Plenty of people don't want to put their lives on the line or make themselves available for that kind of duty and responsibility. If they're singling out unregistered imPorts as a particular trouble-making or suspicious group of people— that's profiling. And all of that would be a violation of the Fourth Amendment.
I'm not a policy-maker, and I never have been. I don't fault the people who register to keep jobs, keep housing, keep getting medical treatment. But I do find fault with the idea that a government that wants to cut its budget and minimize its spending on us should be investing in security measures that will take up time and man-hours with little gain. Effective enforcement of these policies will cost them millions if not billions. Regardless of whether or not they actually pull it off, they're illegal. HIPAA applies to everyone; even illegal immigrants have the right to choose their doctors. Searches without warrants or probable cause are a violtion of the Constitution of the United States. If we're "guests", expected to live here and work here, and if the laws apply to us too, then this is a violation of our rights. If they're worried about us proving a liability or a problem, perhaps they should look into finding a way to incorporate us into their already existing programs instead of leaving us in "guest" limbo. If they want cooperation, then they should stop invading our privacy. Because this— this is very much an invasion of privacy. This smacks of McCarthyism, of targeting people because they don't fall in line with the military-driven expectations for registration, and it's a worrying step back towards a police state. Lest we forget, this wouldn't be the first time they've gone in that direction.
I hope this clears up some of the issues. Obviously further analysis depends on what they do, once this really becomes implemented wide-scale and begins to take off. But as a precedent, you have a right to know what your rights typically are, or would be, and how this could apply to them. How this could potentially infringe on your rights, such as they are.
*OOC disclaimer: I am not a lawyer or even a law student, I only play one on the internet. Nor am I a medical professional or a member of law enforcement. I have researched to the best of my ability and have done my best to represent the facts as I understand them.
SOURCES:
- Consent to treatment/informed consent
- HIPAA and Health Privacy: Facts & Myths
- 45 CFR 164.512 - Uses and disclosures for which an authorization or opportunity to agree or object is not required wrt HIPAA and consent to disclose health information
- Probable cause
- US Constitution: Fourth Amendment
- Search and Seizure
- The Fourth Amendment: Reasonableness Requirement
- National Security & Medical Information
- What is reasonable suspicion?
- Wikipedia: Probable cause
- When can the police stop and frisk you on the street?
- Wikipedia: Stop and identify statutes
- Badgered Dr. Mom about citizenship wrt medical consent/HIPAA
tl;dr: I put too much effort into RP, making people get "mandatory" health checks or dictating their health care decisions is a violation of HIPAA and subjecting unregistered imPorts to searches contradicts the Fourth Amendment of the Constitution of the United States
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Not quite as bad.
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But I'm sure the two a'you could get on real damn well, talkin' about paperwork or whatever it is y'do all day.
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You know, if you ever want to bring him by, feel free.
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Right.
I don't know if he'd want to do my paperwork, and I sure as hell don't want to get balls deep in legal paperwork.
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Best bet is ignore it until she gets tired of not getting a reaction.
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Lil is my friend. I don't think ignoring is appropriate, you know?
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It's one of the many reasons I try not to work from home.
[ Also it usually leads to sex.
But everything they do usually leads to sex. ]
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When she won't stop pinching your cheeks because she knows it gets to you, don't say I didn't try to help you out of it.
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