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Archive for August, 2014

“Sovereign Citizen” Top Terrorist Threat?

Posted on: August 27th, 2014

By: Michelle Youngblood

By now, most local governments at least have heard of the so-called “Sovereign Citizen” movement, even if they have not had the dubious pleasure of dealing with one of its members.  The term “Sovereign Citizen” applies to any of a range of anti-government groups and individuals who claim, for a variety of reasons, that they are not subject to federal, state, and local governments.  Some sovereign citizens then use this contention as “justification” for criminal activity, from trespassing to tax evasion all the way to murder.

A recent survey of 175 state, local, and tribal law enforcement agencies by the National Consortium for the Study of Terrorism and Responses to Terrorism found that the sovereign citizen movement was considered the top threat for domestic terrorism.[i]  Since 2006, sovereign citizens have been responsible for the deaths of at least six (6) law enforcement officers.  In 2010, for example, police officers in Arkansas stopped two sovereign citizens in a routine traffic stop.  One of the sovereign citizens emerged from the vehicle and began firing at the officers with an AK-47 assault rifle, killing both officers.

The Department of Homeland Security and the FBI have resources available to assist if a particular threat is identified.

[i] A majority of respondents agreed (52% agreed and 34% strongly agreed) that sovereign citizens are a serious terrorism threat.

A Solution to Medical Professional Texting And HIPAA Compliance

Posted on: August 26th, 2014


By: J. Scott Rees

Everyone texts today – your kids, your friends, your doctors.  With electronic health records (EHR) going from a trend to the mandated standard, digital and electronic technologies have become fully integrated into nearly every aspect of the field of medicine.  Medicine is not just the equipment that is used, the tests that are done, the medications that are provided.  Also critical to the medical practice is communication and storage of information.  Texting is particularly useful in the fast paced and information rich world of medicine.  For a physician on call, a text can be more efficient than a call and provide an incredible amount of necessary information.  Texts can also be useful in communicating with patients – reminders of appointments, lab results, and care plans.  This type of simple prompt or reminder may be very important in helping maintain a patient’s health.

The problem, however, is that traditional text messaging is not compliant with the requirements for transmitting ePHI (electronic private health information) under the HIPAA Privacy Rule.  Traditional text messages are not encrypted, the data banks where the information is actually stored are not particularly secure, there is no way to verify receipt of the text by the intended party, and spotty archiving can make an information audit nearly impossible.  That means that outside of transmitting the most basic information, traditional texting is not a safe or even legal option—especially not when the fees for violation can be as much as $50,000 for unsecured communication.

Where there is a need, there is typically a solution; HIPAA compliant text messaging is no different.  Companies like Mediprocity and others have developed services that are specifically tailored to the needs of medical professionals and are designed to allow you to communicate via text messaging in a way that is fully compliant.  Many of these services are more than just texting solutions, rather they involved solutions for faxing, emailing, and other social media outlets.  They integrate with your electronic medical records (EMR), and allow you to attach files, send to multiple recipients, forward, etc.  This means that ePHI can be kept within a closed loop of your EMR system and your compliant communication system.  All your data is secure and is shared easily without any fear of straying outside of compliance.

The services typically require you download an app to your phone and/or tablet, and they often offer a web based version as well for using the service from your desktop or laptop.  So this means that you have access across all of your devices to a single, unified method of communication that works seamlessly with your compliant EMR system to keep you protected whether you are sending or receiving ePHI.

Given the potential cost of HIPAA non-compliance, coupled with the efficiency and usefulness of text messaging, it would be worth looking into the various companies offering HIPAA text messaging solutions.

A Rose By Any Other Name: Alabama Supreme Court Denies Creating Tort of Innovator Liability for Brand-Name Drug Manufacturers, But Its Decision Creates A Pathway for Innovator Liability for Brand-Name Drug Manufacturers

Posted on: August 21st, 2014

By: Michael P. Bruyere and Michael J. Eshman

After the U.S. Supreme Court’s decision in Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011) holding that a generic drug manufacturer generally cannot be liable for a failure-to-warn state law claim because of its duty of sameness – to match the warning provided by the brand-name drug manufacturer – we anticipated that this would lead to creative theories of liability from plaintiffs’ lawyers representing people who allege injuries from ingestion of a generic drug.  One such theory, the innovator liability theory, which seeks to hold a brand-name manufacturer liable for the alleged injuries produced by ingestion of a generic drug, has routinely been rejected by courts across the country because there is no relationship between the brand-name drug manufacturer and the person alleging injury.  See e.g. Guarino v. Wyeth, LLC, 719 F.3d 1245 (11th Cir. 2013) (applying Florida law).

This past week, the Alabama Supreme Court gave new life to innovator liability claims in that state.  See Wyeth, Inc. v. Weeks, 2014 WL 4055813 (Ala. Sup. Ct., August 15, 2014) (Westlaw).  The court held that a brand-name drug manufacturer could be liable based on fraud or misrepresentation for injuries allegedly caused by ingestion of a generic version of its drug.  The court based its ruling on the unique federal regulations in the prescription drug industry that prevent a generic drug manufacturer from altering the warning provided by the brand-name drug manufacturer.  The court indicated that it did not intend to create a new tort of “innovator liability,” but its decision creates a pathway for just that in the prescription drug context.  The court may not have created a new tort, but it created a pathway for consumers of generic drugs who have never ingested the brand-name drug to recover against brand-name drug manufacturers.  The net result is that innovator liability against brand-name drug manufacturers is alive and well in Alabama, for the time being.

We expect there will be reactions to this decision from other courts and potentially the FDA and/or Congress.  In the interim, we expect an increase in claims against brand-name drug manufacturers by people who never ingested their drugs, based on the adequacy of the warnings that accompanied the generic drugs they actually ingested.

NLRB Claims Franchisor and Franchisees are ‘Joint Employers’ – Is McDonald’s Just The First?

Posted on: August 19th, 2014


By: Bradley T. Adler and Frank H. Hupfl, III

In a surprising departure from established Board precedent, the National Labor Relations Office of the General Counsel announced on July 29, 2014 that it had authorized the NLRB’s Regional Directors to issue 43 unfair labor practice complaints against McDonald franchisees and determined that their franchisor, McDonald’s USA, LLC, could be named as a joint employer.  The announcement comes as a shock to the franchise community and marks a startling conflict with roughly thirty years of established franchise law.

Under the traditional franchisor/franchisee relationship, a franchisee is an independent entity from the franchisor and is not viewed as a joint employer with the franchisee.  The NLRB’s recent announcement seeks to shake up that precedent.

With roughly 90% of McDonald’s more than 14,000 restaurants owned and operated by franchisees, the NLRB’s recent announcement could have significant ramifications for the fast-food company.  In a recent statement, the NLRB said it had received 181 complaints of unfair labor practices since November 2012 alleging that McDonald’s franchisees or their parent franchisor had violated employees’ rights to engage in protected activity under the National Labor Relations Act.  Of the 181 complaints, the general counsel’s office determined that 43 of the cases had merit.  The remaining complaints are either pending or were found to be meritless.

Since the NLRB’s announcement, McDonald’s and other franchise associations have issued statements opposing the general counsel’s determination and warning of the potential devastating effects the NRLB’s holding could have on the franchise world.  We will continue to keep you updated on this novel development.

Members of Congress Seek TCPA Revisions

Posted on: August 18th, 2014

By: Matthew N. Foree

Ten members of Congress have recently submitted correspondence to the Chairman of the Federal Communications Commission (“FCC”) urging the FCC to revise the Telephone Consumer Protection Act (“TCPA”).  They frame the issue at stake as “a significant hindrance to public and private business practices across our great nation due to outdated federal law.”

These individuals recognize that the TCPA was enacted to address a concern over telemarketing calls and practices found to be an invasion of privacy.  Nevertheless, they realize the problem that the law is “being unfairly applied with great unintended consequences to calls that the Federal Communications Commission has deemed informational, not solicitation or telemarketing.”  The members of Congress also realize that technology has changed and that the TCPA needs to change with it, requesting that the FCC apply a common sense approach to the TCPA, “particularly when organizations are contacting individual consumers for informational purposes, and are not contacting consumers for telemarketing purposes.”  As they  note, these entities may contact consumers on mobile devices if they make calls manually.  They also note that the FCC must recognize that 96 percent of adults are mobile subscribers and more than half of households are either entirely or mostly wireless.

The members of Congress state that, if the TCPA is not revised, federal and state government bodies cannot use technology in an efficient manner to contact millions of consumers for informational purposes, nor will private sector businesses be able to reach consumers on issues such as foreclosure or litigation.  They also recognize that the TCPA has turned into a “booming practice for opportunistic attorneys to take advantage of ambiguous rules and profit personally by suing businesses and overburdening the courts while providing only nominal relief to their clients.”

In sum, these members of Congress are seeking “common-sense reforms to facilitate the delivery of time-sensitive consumer information to mobile devices while continuing to protect consumers from unwanted telemarketing calls.”  They make a compelling argument when they conclude that “[t]he world has changed significantly since 1991 and it’s time for the FCC to clarify and modernize its TCPA rules to reflect the realities of today.”  Only time will tell if these long-awaited revisions will be enacted.