RIFAI v. USA: MOTION FOR SANCTIONS, LITIGATION FEES, AND EXPUNGEMENT (A PODCAST ANALYSIS & REVIEW)

“..Find out just what a people will submit to, and you have found out the exact amount of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress..”
frederick douglas

reported and republished in youarewithinthenorms

NORMAN J CLEMENT RPH., DDS, NORMAN L. CLEMENT PHARM-TECH, MALACHI F. MACKANDAL PHARMD, BELINDA BROWN-PARKER, IN THE SPIRIT OF JOSEPH SOLVO ESQ., INC.T. SPIRIT OF REV. IN THE SPIRIT OF WALTER R. CLEMENT BS., MS, MBA. HARVEY JENKINS MD, PH.D., IN THE SPIRIT OF C.T. VIVIAN, JELANI ZIMBABWE CLEMENT, BS., MBA., IN THE SPIRIT OF THE HON. PATRICE LUMUMBA, IN THE SPIRIT OF ERLIN CLEMENT SR., EVELYN J. CLEMENT, WALTER F. WRENN III., MD., JULIE KILLINGSWORTH, RENEE BLARE, RPH, DR. TERENCE SASAKI, MD LESLY POMPY MD., CHRISTOPHER RUSSO, MD., NANCY SEEFELDT, WILLIE GUINYARD BS., JOSEPH WEBSTER MD., MBA, BEVERLY C. PRINCE MD., FACS., NEIL ARNAND, MD., RICHARD KAUL, MD., IN THE SPIRIT OF LEROY BAYLOR, JAY K. JOSHI MD., MBA,AISHA GARDNER, ADRIENNE EDMUNDSON, ESTER HYATT PH.D., WALTER L. SMITH BS., IN THE SPIRIT OF BRAHM FISHER ESQ., MICHELE ALEXANDER MD., CUDJOE WILDING BS, MARTIN NJOKU, BS., RPH., IN THE SPIRIT OF DEBRA LYNN SHEPHERD, BERES E. MUSCHETT, STRATEGIC ADVISORS

This document pertains to Muhammad Aly Rifai’s pro se motion for sanctions and litigation fees against the United States, filed in the Eastern District of Pennsylvania.

Rifai, who was found not guilty on all charges, is requesting relief, including attorney fees and litigation costs exceeding $650,000, due to alleged constitutional violations and bad faith prosecution.

The document details Rifai’s arguments, including the government’s alleged frivolous and vexatious investigation and prosecution, and cites various legal precedents to support his claims. Exhibits attached include a CMS audit report, a Pennsylvania Department of Health letter regarding COVID vaccinations, and a press release package concerning the case.

Rifai also requests an internal investigation of the prosecutors and seeks expungement of his arrest and prosecution record.

Glossary of Key Terms

• Pro Se: Representing oneself in a legal case without an attorney.
• Motion for Sanctions: A request to the court for penalties or other coercive measures against a party for misconduct.
• Hyde Amendment: A statutory provision allowing a prevailing party (other than the United States) in a criminal case to recover attorney’s fees and litigation expenses if the court finds the United States’ position was vexatious, frivolous, or in bad faith.
• Vexatious: (In legal terms) Causing or tending to cause annoyance, frustration, or worry.
• Frivolous: (In legal terms) Lacking a legal basis or serious purpose; not worthy of serious consideration.
• Bad Faith: Dishonesty of belief, purpose, or motive.
• Qui Tam Action: A lawsuit brought by a private individual on behalf of the government, alleging fraud.
• False Claims Act: A federal law that imposes liability on persons and companies who defraud governmental programs.
• Northeast Uniformed Program Integrity Contractor (NE UPIC): A Medicare contractor responsible for performing fraud, waste, and abuse detection and prevention activities.
• Office of Professional Responsibility (OPR): An internal office within the Department of Justice that investigates allegations of misconduct against DOJ attorneys.
• Expungement: The process of legally erasing or sealing a criminal record.
• DEA (Drug Enforcement Administration): A United States federal law enforcement agency under the U.S. Department of Justice tasked with combating drug trafficking and distribution.
• AUSA (Assistant United States Attorney): A lawyer who represents the United States government in federal court.
• Indictment: A formal accusation by a grand jury charging a person with a crime.
• CPT Code (Current Procedural Terminology): A medical code set used to report medical, surgical, and diagnostic procedures and services to entities such as physicians, health insurance companies and accreditation organizations.
• Medicare: A federal health insurance program for people 65 or older, certain younger people with disabilities, and people with End-Stage Renal Disease (ESRD).
• OIG-HHS: The Office of Inspector General for the Department of Health and Human Services.
• CMS Audit Report: This is an audit from the Centers for Medicare & Medicaid Services that is the result of a formal audit.
• Department of Justice Manual: A comprehensive guide to the policies and procedures of the United States Department of Justice.

click to listen to analysisis of rafia’s motion for sanction pro se

Document 89 Motion for ExpuNgEment

This document appears to be a legal filing. It’s identified as “Document 89” in case number 5:22-cr-00390-JLS. The document was filed on February 11, 2025. The title “Motion for Expungement” suggests a request to remove information from the court record. This specific excerpt contains the pages 1-12, 14, 16, 19-32, 35-36, 39-51, 54, 59-60, 63, 65-70, 75, 79, 83-84, 86, 88-101, 106, 108-109, 111-113, 115-116, 118-119, 121-123, 125-130, 132-133, 135, 138-156, 158-160, 162, 166-172, 176-179, 184-186 and 188 out of the 188 pages. The body of each excerpted page is blank, so this portion contains primarily filing information.

BACKGROUND

Muhamad Aly Rifai is a practicing internist and psychiatrist in the Greater Lehigh Valley, Pennsylvania. He is the CEO, chief psychiatrist and internist of Blue Mountain Psychiatry. He holds the Lehigh Valley Endowed Chair of Addiction Medicine.

Dr. Rifai is board-certified in internal medicine, psychiatry, addiction medicine, and psychosomatic medicine. He is a fellow of the American College of Physicians, the Academy of Psychosomatic Medicine, and the American Psychiatric Association. He is the former president of the Lehigh Valley Psychiatric Society.

ARGUMENT

Dr. Rifai’s discussion paper examines the criminal enforcement of HIPAA, highlighting a perceived disparity in its application. While HIPAA aims to protect patient medical record privacy, breaches of protected health information (PHI) are frequent, often going unpunished for large organizations. 

The paper notes that individual physicians have faced criminal prosecution for HIPAA violations, citing specific cases. The author contrasts this with the lack of accountability for health system and insurance executives despite large-scale data breaches impacting millions. 

The text emphasizes the need for consistent enforcement across all levels to safeguard patient data. Ultimately, the source argues that HIPAA’s goal of protecting patient data is failing, and real accountability is needed.

discussion

HIPAA Criminal Enforcement: Breaches, Physicians, and Accountability

Congress passed the Health Information Portability and Accountability Act (HIPAA) in 1996. This federal regulation was aimed at maintaining the privacy of medical records while ensuring the smooth flow of medical information pertinent to patient care.

Penalties assessed for violations of the HIPAA Act mostly involve financial penalties (between $25,000 per violation up to $100,000 per violation). Congress also included criminal penalties for violations of HIPAA rules enacted under 42 U.S.C. § 1320d-6, and those criminal penalties carry up to 10 years in prison.

Over the past five years, the pace of electronic breaches of protected health information (PHI) has accelerated. Not one day passes without news of a medical facility, health network, or health insurer being the victim of a data breach.

Technically, all these data breaches constitute violations of HIPAA.

Yet because of their frequency, special mechanisms of reporting have been enacted by government agencies enforcing HIPAA. Entities subjected to electronic breaches leading to the unauthorized access to PHI for a large number of patients now report these breaches publicly and move on without any repudiation or punishment.

Unfortunately, what is good for the goose is not good for the gander. Physicians have been on the receiving end of criminal prosecutions for HIPAA violations.

In 2010, Huping Zhou, MD, became the first person to be sentenced to jail in relation to a HIPAA violation. Dr. Zhou, a cardiothoracic surgeon in China, was working as a researcher at UCLA.

He was accused of accessing the medical records of his supervisors and colleagues, as well as reviewing the medical records of many celebrities without any specific medical need. He pleaded guilty and served four months in jail but went on to return to private practice as a family practitioner in Virginia.

In 2018, a Massachusetts gynecologist, Dr. Rita Luthra, was found guilty of a criminal violation of the HIPAA privacy rule. Dr. Luthra was accused of providing a pharmaceutical sales agent with access to PHI to assist with pre-authorizations related to insurance approvals of prescription medications.

After being found guilty at trial, Dr. Luthra lost her medical license but was spared jail time after the judge sentenced her to one year of probation in consideration of her long career serving deprived communities in western Massachusetts.

While technically, Dr. Luthra’s action was a violation of the HIPAA rules, it was only because there was no business associate agreement with the pharmaceutical representative that would have ensured compliance with the HIPAA privacy rule.

Most recently, surgery resident Eithan Haim, MD, was indicted and charged criminally for HIPAA violations after he provided a reporter with medical records of children receiving gender transition-related care at Texas Children’s Hospital in Houston, Texas.

Dr. Haim maintained that no laws were broken because no PHI was disclosed. This case caused a significant uproar because Dr. Haim was identified as a whistleblower against Texas Children’s Hospital, which had publicly stated it would end providing gender transition care services.

Nonetheless, the records disclosed by Dr. Haim, without any PHI, revealed that the hospital was continuing to provide the gender transition care it claimed to have stopped. As a consequence of his prosecution and the issues he revealed, Texas passed an outright ban on transition-related care for minors.

On January 24, 2025, a few days into the new administration, the Department of Justice decided to dismiss the indictment against Dr. Haim with prejudice, ending his prosecution for criminal HIPAA charges. The dismissal was a consequence of an executive order signed by President Donald Trump, who had pledged to end the weaponization of the justice system.

The HIPAA privacy rule as a regulation and law has become a toothless and meaningless regulation. Given the extent and breadth of data breaches over the past few years, experts estimate that the protected health information for most adults who live in the U.S. is available on the dark web.

This information includes full details of patients’ names, addresses, dates of birth, and Social Security numbers. If you’re reading this, there is close to an 85 percent chance that your protected personal health information is available for someone to exploit.

There has been little attention or protest drawn to the fact that only physicians have been clearly prosecuted for criminal HIPAA violations, while executives in hospitals and health insurers have recklessly and potentially criminally neglected to enforce their security protocols, leading to data breaches.

It is interesting that no one has been held accountable for any of these breaches, as organizations that recklessly neglected their computer systems notify the affected patients and move on unblemished and unscathed.

The justice system has held physicians responsible when there is a HIPAA violation. Health system executives, as well as health insurance executives, need to be held to the same standard and be accountable and responsible for these breaches; otherwise, the security of protected health information will continue to deteriorate.

Finally, in 2024, UnitedHealth Group, which purchased Change Healthcare in 2023, was affected by a large data breach where PHI was stolen by hackers through the ransomware process. It was reported that UnitedHealthcare paid tens of millions of dollars to the hackers, who, in a sardonic twist, quibbled amongst each other, with some claiming that other hackers who were paid absconded with the ransom and did not pay them.

We have recently learned that the breach was the largest in recorded history, as it involved the PHI of some 191 million Americans. The lax computer security protocols during the transition of Change Healthcare to the ownership of UnitedHealth Group were thought to be the source of this significant data breach.

It is ironic that those of us still seeing patients receive periodic mailings from Change Healthcare advising us about our billing and coding performance, despite Change Healthcare not being able to keep patient PHI secure.

To date, there has been no accountability or civil or criminal charges filed against any person or entity responsible for many breaches over the last five years.

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