NFPW FAN Network Issues

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NFPW FAN Network Issues

• Tonda Rush
• American PressWorks NFPWs Headquarters
• King Ballow
• [phone]
• NewsBizLaw_at_aol.com

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Name this man
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Who is this?
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Our Readers, Viewers, Listeners

• 52 can name at least 2 Simpsons
• 28 can name one of the five rights in the First
  Amendment
• Only 35 can name one Justice 1 can name all
• Most high school students think the government
  should be permitted to read newspapers before
  they publish

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Diagnosis?

• School curricula
• Civics has all but disappeared from school
  curricula Richard Lee Colvin, director
  Hechinger Institute on Education and the Media,
  Columbia University? Diversity
• Media literacy?
• 86 of students do not participate in
  media-related activities (e.g. reading
  newspapers, watching tV news, checking out news
  sites.)
• Knight Foundation, 2005
• Entertainment focus?
• The dinner table?

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Cure

• Education
• Education
• Education
• And
• Eternal vigilance is the price of liberty

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Hot Buttons

• Privacy
• HIPAA
• Personal data
• Government intrusion
• Expanded ideas of personal space
• National Security
• Borders are not secure
• Attacks may come
• War continues

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One Privacy Issue

• HIPAA has bedeviled newsrooms
• Problems covering accidents and disasters
• Problems reporting on health institutions, as
  people issues are always at their root
• Problems reporting on public health agencies
• And sometimes on law enforcement

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HIPAA

• (All cites 45 CFR Parts 160 and 164)
• Covered Entity
• 160.103
• Health Plan
• Health Care Clearing House
• Health Care Provider who transmits any health
  information in electronic form in connection
  with a transaction covered (by HIPAA)
• Hybrid Entity 164.103(a) may compartmentalize

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Transactions, e.g.

• Claims
• Benefits
• Enrollment in Health Plan
• Coordination of Benefits

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What HIPAA Says

• Disclosure
• 160.103release, transfer, provision of, access
  to, or divulging in any other manner of
  information outside the entity holding the
  information.

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What is Health Information

• Health information 160.103
• Any information, whether oral or recorded in any
  form or medium that is created or received by a
  health care provider, health plan, public health
  authority, employer, life insurer, school or
  university, or health care clearinghouse and
• Relates to the past, present, or future physical
  or mental health or condition of an individual
  the provision of health care to an individual or
  the past, present or future payment for the
  provision of health care to an individual.

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More Definition

• Protected Health Information
• Individually identifiable health information
• Transmitted by electronic media
• Maintained in electronic media or
• Transmitted or maintained in any other form or
  medium
• Except FERPA records, records held by employer
  and misc. exceptions

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Disclosures

• 164.502 A covered entity may not use or disclose
  protected health information except as permitted
  or required by (the regulations.)
• FOIA is one of the exceptions
• During disasters HHS says some disclosure is
  permitted to help locate victims

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Permitted

• To the individual
• For treatment or payment
• Facility directories 164.510
• To public health authority, in some
  circumstances, 164.512(b)
• To coroner
• To law enforcement, in emergency
• To funeral directors
• For research, if guidelines are followed
• Whistleblowers, to official channels

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Required

• To the individual
• To compliance officers
• When required by law

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And

• Facility directories 164.510
• Name
• Location
• General condition
• Religious affiliation
• May disclose to
• Clergy
• Others who inquire by name
• Patients must be provided with opportunity to
  object and remove information

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Penalties

• About Penalties
• Wrongful disclosure of individually identifable
  health information
• Fine up to 15,000, prison up to 1 year
• Under false pretenses fine up to 100,000
  prison up to 5 years
• Malicious disclosure fine up to 250,000, prison
  up to 15 years.
• 42 U.S.C. 1320(d)

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In Emergencies

• If opportunity to object cannot be practicably
  provided, disclosure may be made if
• It is consistent with prior preference known to
  C.E. AND
• Patients best interest is served.

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HHS addresses some questions

• State Open Records Laws if law requires
  disclosure, HIPAA permit.
• Citation State open records laws?
  http//healthprivacy.answers.hhs.gov/cgi-bin/hipaa
  .cfg/php/enduser/std_adp.php?p_faqid506p_created
  1093368482p_sidsXCGCx3ip_lvap_spcF9zcmNoPTE
  mcF9zb3J0X2J5PWRmbHQmcF9ncmlkc29ydD0mcF9yb3dfY250P
  TEmcF9wcm9kcz0mcF9jYXRzPTcsMCZwX3B2PSZwX2N2PTEuNzs
  yLnUwJnBfc2VhcmNoX3R5cGU9YW5zd2Vycy5zZWFyY2hfbmwmc
  F9wYWdlPTEmcF9zZWFyY2hfdGV4dD1vcGVuIHJlY29yZHMp_
  lip_topview1

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About State Law

• About State Law
• Privacy Rule sets minimum standard 160.202
• But State ex rel Cincinnati Enquirer v Daniels
  State open records law supersedes in newspapers
  request for
• health department citations where unhealthy lead
  levels detected in schools, homes and day care
  facilities
• Health Dept refused to release citations in
  single family dwellings
• Court even if the health department is a
  covered entity, and information is PHI, state law
  governs.

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More about State Law

• Texas AG Opinion 681
• Lubbock Police Department not a covered entity
• First responders may or may not be covered
  entities Are clearly health care providers
• But they have responsibilities under open records
  law
• Communications between providers and patients is
  confidential
• But presence, nature of injury or illness, age,
  sex, occupation, city of residence are not
  confidential

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Questions to ask

• Is record holder a covered entity?
• Is record holder a hybrid?
• Are records covered by a public records law
• If so, is disclosure mandatory unless exempt
• Is the record exempt

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National Security

• Wire Tapping
• Intelligence agency files
• Local security issues
• Need to know or right to know?
• Over classification the 9/11 Commission

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Existing Law

• 1917 Espionage Act
• The AIPAC case testing whether it is a crime to
  receive classified information
• Implications for journalists, as well as
  lobbyists
• Classification contracts (Snepp)
• Personnel sanctions Chairman Hoekstra debates
  whether removing pensions from leakers is the
  answer

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OSA

• Is there a need for an Official Secrets Act?
• Can an open nation be safe?
• Can a nation be safe if it is not open?
• Sen Roberts
• The Dialogue
• FAN Action Alerts?

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For our Business Communicators

• Another privacy issue
• The right not to receive faxes
• Phone calls
• Computer spam

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The Fax Law

• Telephone Consumer Protection Act
• Unsolicited commercial faxes remain illegal.
• A fax is not unsolicited if it is sent within
  the context of an established business
  relationship (EBR)
• The term "established business relationship",
  for purposes only of subsection (b)(1)(C)(i),
  shall have the meaning given the term in section
  64.1200 of title 47, Code of Federal Regulations,
  as in effect on January 1, 2003, except
  that--      (A) such term shall include a
  relationship between a person or entity and a
  business subscriber subject to the same terms
  applicable under such section to a relationship
  between a person or entity and a residential
  subscriber and      (B) an established business
  relationship shall be subject to any time
  limitation established pursuant to paragraph
  (2)(G)). 47 U.S.C.227(a)(2)

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Unsolicited

• (5) The term "unsolicited advertisement" means
  any material advertising the commercial
  availability or quality of any property, goods,
  or services which is transmitted to any person
  without that person's prior express invitation or
  permission, in writing or otherwise.47 U.S.C.
  227(a)(5).  

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Acquisition of the phone number

• (C) to use any telephone facsimile machine,
  computer, or other device to send, to a telephone
  facsimile machine, an unsolicited advertisement,
  unless--         (i) the unsolicited
  advertisement is from a sender with an
  established business relationship with the
  recipient         (ii) the sender obtained the
  number of the telephone facsimile machine
  through--            (I) the voluntary
  communication of such number, within the context
  of such established business relationship, from
  the recipient of the unsolicited advertisement,
  or            (II) a directory, advertisement,
  or site on the Internet to which the recipient
  voluntarily agreed to make available its
  facsimile number for public distribution,        
   except that this clause shall not apply in the
  case of an unsolicited advertisement that is sent
  based on an established business relationship
  with the recipient that was in existence before
  the date of enactment of the Junk Fax Prevention
  Act of 2005 enacted July 9, 2005 if the sender
  possessed the facsimile machine number of the
  recipient before such date of enactment
  and         (iii) the unsolicited advertisement
  contains a notice meeting the requirements under
  paragraph (2)(D) 47 U.S.C 227(B)(1)(c)

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Notice

• For commercial faxes
• On first page
• Clear and conspicuous
• Domestic telephone contact
• Cost Free opt out any time any day of the week   
• For all faxes
• Date and time sent      
• Identification of the business or sender
• Telephone number of sender

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Enforcement

•  (3) Private right of action. A person or entity
  may, if otherwise permitted by the laws or rules
  of court of a State, bring in an appropriate
  court of that State--      (A) an action based
  on a violation of this subsection or the
  regulations prescribed under this subsection to
  enjoin such violation,      (B) an action to
  recover for actual monetary loss from such a
  violation, or to receive 500 in damages for
  each such violation, whichever is greater,
  or      (C) both such actions.   If the court
  finds that the defendant willfully or knowingly
  violated this subsection or the regulations
  prescribed under this subsection, the court may,
  in its discretion, increase the amount of the
  award to an amount equal to not more than 3 times
  the amount available under subparagraph (B) of
  this paragraph.47 U.S.C. 227(b)(3)

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Guidelines

• Faxes to customers are ok, unless a specific DNC
  is issued
• Burden is on sender, though
• Notice must be on first page, with opt-out number
• Dont buy fax numbers
• Await further FCC definition
• Watch your state legislature

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And maybe your state next

• (b) (1) It is unlawful for a person or entity, if
  either the person or entity or the recipient is
  located within California, to use any
• telephone facsimile machine, computer, or other
  device to send,
• or cause another person or entity to use such a
  device to send, an Unsolicited advertisement.
• (2) Unsolicited advertisement means any
  material advertising the commercial availability
  or quality of any property, goods, or services
  that is transmitted any person or entity without
  that persons or entitys prior express
  invitation or permission. Prior express
  invitation or permission may obtained for a
  specific or unlimited number of advertisements
  and may be obtained for a specific or unlimited
  period of time.
• SB 833, effective Jan. 1, 2006.

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JOIN FAN

• www.nfpw.org
• Mshuler_at_theadvocate.com
• Newsbizlaw_at_aol.com