An opinion dated June 1, 2005 but not made public until New York Times article of June 7, answers a request from the general counsel of HHS for clarification of the scope of the HIPAA criminal provision.
According to Swire’s analysis, “the OLC opinion is terribly frustrating to read. The opinion reads like a brief for one side of an argument. Even worse, it reads like a brief that knows it has the losing side but has to come out with a predetermined answer.”
Swire states that “The opinion had assumed that Congress wanted to exempt employees and thieves from criminal penalty.”