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A Wisconsin superintendent is facing six counts of felony false imprisonment after allegedly confining six students to a room and ordering them to strip down to their underwear during a search for vape cartridges, FOX UP reports.

Kelly Casper, superintendent of Suring School District, allegedly directed the students into a small bathroom off the nurses office and told them to remove their clothing as she stood in the doorway, said Oconto County District Attorney Edward Burke Jr. The students were not given a option to leave or contact their parents; the only option was a search by the superintendent or by a police officer, he said.

In Wisconsin, false imprisonment is punishable by up to six years in prison and a $10,000 fine, according to the report.

Some of the parents are also pursuing a civil lawsuit claiming the students Fourth Amendment rights were violated. The amendment protects against unreasonable searches and seizures.

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Superintendent charged after students allegedly ordered to remove clothes during vape search - MLive.com

Providers would do well to think beyond any specific national standard, to more specific details, when considering denial appeals.

A member of a message board I follow, and to which I occasionally contribute, recently posed a question about a denial of coverage based on an alleged failure to meet medical necessity requirements. The admitting diagnosis was metabolic encephalopathy. She did not say (nor, regrettably, did I ask) the principal diagnosis submitted with the claim. The reason given for the denial was that the physician did not document exposure to a toxic element. The patients ammonia levels were high, and ammonia can be a causative factor in metabolic encephalopathy. The patient had Traditional Medicaid.

She asked if toxic exposure was even a factor. I wrote an emphatic no, not based on my own research of a national standard, specifically InterQual, one of the allowed tools for medical necessity evaluation.

I advised that she should appeal on the basis of the totality of the record principle, as stated in Alexander v. Azar, a strategy I have used successfully before a Medicare Administrative Law Judge (ALJ) long before this decision. Slavish adherence to a national standard (i.e. InterQual or MCG) is contrary to sound medical necessity determinations, according to the judges ruling.

How is the totality strategy applicable here?

The denial appears to have been based on InterQuals Toxic Exposure subset. In my opinion, this is an incorrect subset, not applicable to a metabolic disorder. In my search, there was truly no subset directly addressing metabolic encephalopathy, nor one specific to liver disease. Both MCG and InterQual admit to holes, wherein no ORG or subset is useful in determining medical necessity. This Toxic Exposure requirement was an overreach to justify a position.

It is not uncommon for payers to use ORGs or subsets not supported in the record, nor the one reasonably used by the provider to determine medical necessity. Payers also may use the correct ORG or subset, but apply a level-of-care standard for which the plan was not billed. For example, say an acute-stay claim is submitted for care provided on the medical/surgical unit. The criteria applied by the payer is that for intermediate or even critical care. The right criteria were set, but with a manufactured level of care. The inverse is true as well; payers can tend to ignore elements of the criteria set that support inpatient admission so they can justify paying only for observation status.

This payers apparent assertion is not unique. Payers have issued initial denials of coverage based on an admitting diagnosis. These denials are usually issued before coding and billing. Once coded and a proper principal diagnosis is provided, the payer will generally approve the stay. Sometimes the denial is based on insufficient information that, once provided, results in the denial being set aside. But not always. Some will ride that horse all the way off the cliff, never acknowledging their possible error, forcing an appeal to state or federal contractors, where the totality of the record will be considered.

The conclusions of Alexander are, in my opinion, affirmed and expanded upon by Barrows v. Becerra, by the appellate court. The conclusions of the appellate court in Barrows have many layers to peel back, but wading through them reveals that both courts affirm that Medicare beneficiaries have Fourth Amendment standing under the legal theory of property rights. Both deal with hospital and provider admission status decisions essentially coerced to be in compliance with standards set by the Centers for Medicare & Medicaid Services (CMS) and its auditing contractors. Both courts conclude that only the total record can support or refute a claim by the government that inpatient is the wrong status.

Both cases also involve only Traditional Medicare beneficiary rights to due process, but the overriding principle expressed in both is that anything apart from the total record is at least potentially harmful to patients. Arbitrary application of standards, outside an analysis of the complex medical decision-making, is just wrong. Arguably, these conclusions are also applicable to Medicare Advantage plans and Medicaid. I personally can attest to frequent success by challenging payer and government contractor criteria, whether MCG, InterQual, or payer internal proprietary standards, when confronting them with the total record, without reliance on any national standard.

This does not mean you will always be the hands-down winner on appeal. The record has to be, as always, descriptive of why hospital care was necessary. Hospitals sometimes enter into contracts with language that, wittingly or unwittingly, means hospitals waive their rights to disagree with payer internal standards.

But apart from this, the lesson of these court decisions is to never let any standard other than the total record rule final status and/or billing decisions. To do so can cause unwarranted loss of revenue, and worse, have very real, even devastating, effects on your patients.

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Understanding the Totality of the Record - RACmonitor

So holds Judge Edward Chen in yesterday's Deschamps v. City of Sausalito.The factual backstory:

Mr. Deschamps asserts that he has claims pursuant to 42 U.S.C. 1983. Specifically, he asserts violations of the First Amendment (his "right to associate with pets"), the Fourth Amendment, the Eighth Amendment, and the Fourteenth Amendments. In the complaint, Mr. Deschamps explains that he has brought these claims because "[t]hey gave us 3 days to move to the tennis courts, and now they are taking away the structure I need to keep my cats." The TRO application sheds additional light on Mr. Deschamps's claims. In the TRO application, he states that he will not be allowed to use his "tent structure" and instead will be issued a "standard one" that is 8x6 feet. He asserts that the standard tent is inadequate because "[t]here is not enough space for my cats" and "they are made out [of] really thin material" that his "cats will rip up easily." In contrast, his own tent "is made [up of] strong reinforced canvas[] my cants can't tear up. [If] my cats escape before they acclimate to the tennis courts, they will go astray and may die by getting hit by vehicles or eaten by coyotes."

Say what you will about Mr. Deschamps' plight, and about how government officials should deal with homeless encampments, I agree that the First Amendment isn't implicated here.

More:
"There Is No Right to Associate with Pets Under the First Amendment" - Reason

Executive Summary

Introduction

The Senate may soon consider the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act of 2022. On its surface, the bill would make a relatively small modification to the Section 230 of the Communications Decency Act, which is designed to put a greater onus on Big Tech to crack down on the spread of child sexual abuse material (CSAM). While a laudable goal, the bills changes threaten critical privacy protections, such as end-to-end encryption (E2EE), or mandate firms scan user communications. In isolation, this privacy tradeoff could be worth making, or at least worth debating. But the bill as currently structured would deputize platforms as partners in law enforcement in the identification and reporting of CSAM. This could make evidence obtained by the platforms inadmissible in court, as platforms would now be state actors and their searches unconstitutional under the Fourth Amendmentand thus make prosecution of CSAM criminals much more difficult.

Now that the Judiciary Committee has moved the bill out of Committee, the Senate will have the opportunity to fix the major issues still prevalent in the bill. This insight explains why the legislations reforms risk significant harm to both user privacy and law enforcement agencies as they attempt to prosecute CSAM criminals. Members should carefully consider these concerns as they consider the bill.

EARN IT Act What It Does

The EARN IT Act does two main things. First, it creates a commission with a variety of different stakeholders to develop recommended best practices for platforms to prevent, reduce, and respond to the online sexual exploitation of children. The commissions recommendations do not bind platforms to act in accordance with the best practices, and ideally would remain voluntary to guide platforms with the best steps to address CSAM. Courts may also use these guidelines in determining whether platforms adhered to necessary standards of care under relevant state laws on the issue.

Second, the bill would create an exemption to Section 230s protections for intermediary liability for claims relating to the advertisement, promotion, presentation, distribution, or solicitation of CSAM. Section 230 currently has an exemption for violations of federal criminal law, meaning existing law which makes it a federal crime to knowingly possess and share CSAM already applies to platforms such as Facebook and Twitter. For all state and federal civil claims, however, Section 230 precludes courts from treating platforms as the publisher or speaker of what users post. In practice, this means that states cannot enforce CSAM-related statutes that attempt to hold platforms as the speaker when CSAM is shared. EARN IT would extend the exemption for federal criminal enforcement to any state civil or criminal claims. Further, because EARN IT allows states to enforce their own laws, in practice it also allows states to change the legal standards for liability. This means that even if a platform doesnt know about CSAM on their service, they can be liable for users possessing and sharing the content if the state finds that a platform should have known, or even acted negligently, in identifying and reporting these materials.

Certainly, both Congress and platforms should strive to find better strategies to target the spread of CSAM. But while the EARN IT Act clearly aims to this goal, as drafted, it would have significant unintended consequences for both user privacy and the ability of law enforcement to prosecute criminals.

EARN IT Act Threatens User Privacy

Since the original bills introduction, many critics have worried that it would target user privacy features such as end-to-end encryption, which criminals can use to obtain and share CSAM without the risk of law enforcement gaining access to these communications. In the original bill, for example, adhering to the commissions recommendations would earn platforms Section 230 immunity. Attorney General Bill Barr, a noted critic of end-to-end encryption, would have had significant control over the commission and its participants. This threat led to significant outcry from public interest and privacy groups. In response to massive opposition to this approach, the drafters drastically changed the bill to its current structure and Senator Leahy introduced an amendment to alleviate concerns that offering E2EE would lead to liability.

When EARN IT was reintroduced in 2022, lawmakers changed the language again. Now the encryption provision only states that offering E2EE cannot be used as evidence to support other claims, as long as it not be an independent basis for liability. What does this mean in practice? If a claim against a platform alleges the service should have known about CSAM, plaintiffs and prosecutors could argue that offering E2EE could have contributed to the reckless behavior of the platform. The language would only protect platforms if they engaged in no other conduct that potentially supported the conclusion that the platform should have known about the CSAM.

This wouldnt be a major issue in isolation, as federal law requires actual knowledge of the content, so offering E2EE wouldnt necessarily give rise to liability. Nevertheless, the bill also allows for states to bring claims under state laws that could have different standards than the current federal regime, such as recklessness. While the actual legality of the practices will depend on the facts of the case, firms will likely feel pressure to eliminate these services, regardless of the privacy benefits they provide to users.

Worse, even a fully restored Leahy amendment that made clear offering E2EE could not be used as evidence against a platform wouldnt fully protect the privacy of users. E2EE only protects the communications in transit, and not the information on users devices. Firms can employ client-side scanning to examine the contents of messages before the message is encrypted or decrypted. The Leahy amendment would only cover the encryption of messages in transit, and not on the device, itself. Again, this in isolation doesnt give rise to liability, but when states impose a lower standard than knowledge, ICS could be found liable for spreading CSAM if they do not use tools such as client-side scanning to ensure users do not share CSAM over the service.

With Congress significant focus on online privacy, including that of the EARN IT Acts cosponsors, this threat to user privacy is somewhat surprising. Encryption protects users from a variety of potential harms. Victims of domestic abuse need secure and confidential communications to speak to loved ones and access support. Journalists use encryption to protect sources. And a lack of strong protections opens the door for hostile actors to target Americans. At the same time, pedophiles can also use encryption to evade law enforcement and continue to harm children.

If the EARN IT Acts changes simply meant a tradeoff between stopping CSAM and keeping privacy protections such as encryption, then Congress and the public could have that debate. Unfortunately, as drafted, the bill would both reduce privacy protectionsand make it more difficult to prosecute CSAM criminals.

EARN IT Act Could Make Prosecution of Criminals More Difficult

Despite the best intentions of the bills authors, by effectively deputizing platforms into searching for and reporting CSAM on behalf of law enforcement, the EARN IT Act could make information obtained by platforms inadmissible in court under the Fourth Amendment.

Currently, platforms employ a wide range of tools to find and eliminate CSAM. Under federal law, when the platforms learn of CSAM, they report to the National Center for Missing and Exploited Children (NCMEC) the details so that law enforcement can find and arrest the individuals involved. These voluntary actions then lead to prosecution of the individual. Yet this regime only works as long as the platforms provide information to law enforcement voluntarily.

The Fourth Amendment protects individuals against unreasonable searches and seizures, which means that law enforcement must normally obtain a warrant to search users communications. Because platforms arent state actors, their searches do not need the same protections, and prosecutors can use any information obtained from the platform to convict the perpetrators. If a state employs a recklessness or even negligence standard for platforms to find and remove CSAM, however, and platforms are essentially coerced into monitoring communications for CSAM, courts may determine that the influence from government actors essentially makes the platforms state actors.

If courts determine that platforms are state actors, then the evidence obtained from the platforms monitoring efforts may be deemed unconstitutional. For example, an app can use a program such as PhotoDNA to automatically compare unencrypted information against a hash of material in an authoritative database. When there is a successful hit for CSAM, the app can report that to NCMEC and law enforcement can follow up to arrest the perpetrator. But if the government forces the app to scan all the communications on the device to get around the Fourth Amendment, evidence obtained by the app would be inadmissible in the actual prosecution of the case.

It is critical that the enforcement regime remains voluntary so that evidence obtained will not be barred in courtrooms. While Congress should continue to work to target CSAM online, the bills current approach would effectively coerce platforms into acting as the deputy of law enforcement and risks allowing criminals off the hook.

Conclusion

The EARN IT Act as currently drafted has significant problems that threaten the privacy of users and may make it more difficult to prosecute the criminals exploiting children online. While the goals of the bill are certainly laudable, Congress should consider amending the bill to both ensure important privacy features are protected and that platforms do not become state actors when they search for CSAM on their services.

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Unintended Consequences of the EARN IT Act - AAF - American Action Forum

In 2016, a rape survivor voluntarily provided her DNA to San Francisco law enforcement officers so that her attacker might be brought to justice. Five years later, the sample she provided led police to connect her to an unrelated burglary, according to San Francisco district attorney Chesa Boudin. The woman faced a felony property charge, but Boudin dropped the case, saying the use of her DNA was a violation of her Fourth Amendment right against unreasonable searches and seizures.

The incident could deter survivors of sexual assault from coming forward if they think their DNA could be used to implicate them in a future crime. It also raises legal and ethical questions about the broader law enforcement use of genetic evidence. We should encourage survivors to come forwardnot collect evidence to use against them in the future. This practice treats victims like evidence, not human beings, Boudin said in a February 14 statement.

More than 300,000 people were raped or sexually assaulted in 2020, according to the Department of Justices 2020 Criminal Victimization Report. Yet less than 23 percent of those assaults were reported to police, down nearly 34 percent from 2019. Many survivors are also reluctant to undergo a forensic exam, also known as a rape kit, out of fear or shame. During the exam, a nurse collects biological evidence that may contain DNA from the assailant, such as blood, hair, saliva, and skin cells. Survivors may also be asked to provide a sample of their own DNA as a reference to determine if genetic material found at the crime scene belongs to them or someone else.

Sexual assault victims subject themselves to this very invasive exam for one purpose, and that is to identify their assailant, says Camille Cooper, vice president of public policy at RAINN, the Rape, Abuse & Incest National Network, a nonprofit that aims to prevent sexual assault and help survivors. Any use of their DNA for any other purpose is wholly inappropriate and unethical.

And yet, theres currently no uniform practice regarding what crime labs do with reference DNA samples after testing. Federal law does prohibit police from uploading victims DNA profiles to a national database known as the Combined DNA Index System, or CODIS, which is maintained by the FBI. CODIS is used to link violent crimes like homicides and sexual assaults to known offenders and has strict rules for what kind of profiles can be submitted. It contains DNA collected from crime scenes, from people arrested for or convicted of felonies, and to a lesser extent, from unidentified remains. People who are released from custody or found not guilty can petition to have their information removed from CODIS.

But some local police departments operate their own DNA databases outside the purview of CODIS. Most states dont have laws limiting the kinds of DNA samples that can be stored in them. Police departments around the country have, over time, developed these separate databases that are largely unregulated, says Andrea Roth, a law professor at the University of California, Berkeley who specializes in forensic science and has researched these databases.

Continued here:
A Rape Survivor Gave Police Her DNA. They Linked Her to Another Crime - WIRED