Summertime and the Living is Easy Unless You Operate a Long-Term Care Facility

Summertime and the Living is Easy Unless You Operate a Long-Term Care Facility

After nearly 24 years without any major revisions, last week the Centers for Medicare and Medicaid Services (CMS) proposed major revisions to the Medicare-Medicaid Conditions of Participation governing long-term care facilities to reflect advances made to delivering long-term care over the last several years.  Many of the proposals are designed to implement requirements of the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010.  If the proposed revisions are adopted, long-term care facilities will need to revise a long list of policies and procedures and develop and implement a number of new policies and procedures and programs.  CMS estimates that the total projected cost for long-term care facilities to comply with the proposed revisions will be $729,495,614 in the first year and $638,386,760 in the second year.

New Proposals
The new proposals include but are not limited to:
  • Open visitation to allow residents to have visitors of their choice at the time of their choice, subject to any clinically necessary or reasonable restriction or limitation or any safety restriction or limitation.
  • Alternative suitable and nourishing meals and snacks for residents who want to eat at non-traditional times or outside of scheduled meal times.
  • The right of a resident to share a room with his/her roommate of choice if the residents live in the same facility, consent to the arrangement, and the facility is able to reasonably accommodate the arrangement.
  • Comprehensive Person-Centered Care Planning with a baseline care plan established within 48 hours of a resident’s admission to the facility.
  • The provision of behavioral health services to residents with mental and psychosocial illnesses or substance abuse disorders, in accordance with their comprehensive assessments and plans of care, with appropriate staffing to provide the services, including social workers.
  • The establishment of a facility policy regarding the use and storage of foods brought to residents by family and other visitors.
  • The development, implementation, and maintenance of a Quality Assurance and Performance Improvement Program that focuses on systems of care, outcomes of care, and quality of life.
  • The establishment of an Infection Prevention and Control Program to prevent, identify, report, investigate, and control infections and communicable diseases for residents, staff, volunteers, visitors, and other individuals providing services under an arrangement, and the designation of an Infection Prevention and Control Officer to serve on the facility’s Quality Assessment and Assurance Committee.
  • The establishment of policies regarding smoking which address tobacco cessation, smoking areas, and safety, consistent with state and federal law.
  • The development, implementation, and maintenance of a Compliance and Ethics Program with policies and procedures to reduce criminal, civil, and administrative violations.
  • An annual facility wide assessment of a number of factors such as, size, location, and number of residents; resident population, including types of diseases, conditions, and overall acuity; competencies and knowledge of employed and contracted staff, managers, and volunteers; contracts, memoranda of understanding, and other agreements with third parties to provide services or equipment during normal operations and emergencies.
  • Conditions that must be met before a facility enters into a binding arbitration agreement with a resident and provisions which must be included in a binding arbitration agreement, including but not limited to, explaining the agreement to the resident, not making admission to the facility contingent on signing the agreement, and not prohibiting or discouraging a resident from communicating with federal, state, or local health care or health-related officials.
  • New health and safety standards applicable to facilities that provide outpatient rehabilitative services.
Proposed Revisions to Existing Requirements 
In addition, there are a number of proposed revisions to existing requirements, including but  not limited to:
  • Written policies and procedures to prohibit and prevent abuse, neglect, and mistreatment of residents or misappropriation of their property or exploitation.
  • A prohibition on hiring an individual who has had disciplinary action taken against his/her professional license by a state licensing authority due to a finding of abuse, neglect, or mistreatment of a resident or misappropriation of a resident’s property.
  • Expansion of the Interdisciplinary Care Team’s composition to include a nurse’s aide, a member of food and nutrition services, and a social worker.
  • A written explanation if participation of a resident or the resident’s representative on the Interdisciplinary Care Team meetings is not practicable.
  • Upon a resident’s transfer or discharge, documentation of the history of the present illness, the reason for the transfer or discharge, and the past medical/surgical history.
  • An in-person evaluation by a physician, physician assistant, nurse practitioner, or clinical nurse specialist before an unscheduled transfer of a resident, except in an emergency.
  • Accounting for quality, resource use, other measures, treatment preferences, and goals of care in discharge planning.
  • A summary of arrangements for follow-up care and post-discharge medical and non-medical services in the resident’s discharge plan.
  • Physician delegation of dietary orders to dietitians and therapy orders to therapists if  consistent with their scope of practice under state law.
  • Pharmacist review of a resident’s medical chart at least every 6 months, when a resident is new to the facility, when a prior resident returns to or is transferred to the facility, and during each monthly drug regimen review if a resident is on a psychotropic drug, antibiotic, or any other drug the Quality Assessment and Assurance Committee has requested be included in the monthly drug review.
  • Pharmacist documentation of any irregularities identified during the drug regimen review  in a written report provided to the attending physician, facility medical director, and director of nursing.  Attending physician documentation in the resident’s medical record that he/she has reviewed the identified irregularity, and what action, if any, has been taken to address it.
  • Restrictions on the administration of psychotropic drugs, including but not limited to, limiting PRN (as needed) orders to 48 hours and refraining from renewals unless a resident’s physician reviews the need for the medication prior to the renewal and documents the rationale for the renewal in the resident’s clinical record.
  • The implementation of training programs on communication, resident rights and facility requirements, abuse, neglect, and exploitation, Quality Assurance and Performance Improvement and Infection Control, Compliance and Ethics, in-service training for nurse aides on dementia management and resident abuse prevention, and behavioral health training for the entire staff.

Comments on the proposed rule are due by 5 p.m. on September 14, 2015.

-Rochelle

Zapol

If you have any questions concerning the proposed revisions to the Medicare-Medicaid Conditions of Participation governing long-term care facilities or would like assistance in submitting comments to CMS on the proposal, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice and the author of this alert. You can reach Rochelle at 617 456 8036 or rzapol@PrinceLobel.com.

Ban the Box Movement Gaining Strides

Almost one in three adults in the United States has a criminal record that will show up on a routine criminal background check. Given the proliferation of employment background checks—9 out of 10 employers now conduct criminal background checks for employment —millions of workers with records are finding it increasingly difficult to compete for jobs.  According to a recent New York Times/CBS News poll, having a criminal record contributes to high levels of unemployment among prime-age working men—34 percent of unemployed men ages 25 to 54 have been convicted of a crime.[1] A growing concern in some quarters that background checks are being used to not only exclude applicants with a criminal record, but also to systematically eliminate applicants from the hiring process based on race and national origin, has fueled a national “Fair Chance to Work” movement.[2] As a result, “Fair Chance” hiring policies have rapidly taken hold in states and localities across the United States.

Fair chance hiring refers to a set of hiring policies designed to ensure that applicants with criminal records are evaluated on the merits of their qualifications, not just on their criminal records. The rationale behind the campaign is that if employers ask on the initial job application about criminal history, millions of workers may be eliminated even if they might be qualified for the jobs. The movement is also referred to as “Ban the Box.” It is so named after the checkbox on applications asking about a job applicant’s criminal background.

The movement was started ten years ago by a San Francisco-based organizing group, All or None of Us (“AOUON”), made of up previously incarcerated individuals. In 2005, AOUON successfully petitioned the San Francisco Board of Supervisors to adopt a resolution to remove the conviction history question from public-sector job applications. In 2006, the City and County of San Francisco adopted the policy. In less than 10 years since the movement was first launched, the number of jurisdictions adopting fair chance hiring has surpassed 100, including 16 states, the District of Columbia and nearly 100 cities and counties.

MASSACHUSETTS

On August 6, 2010, Governor Deval Patrick signed into law “An Act Reforming the Administrative Procedures Relative to Criminal Offender Record Information and Pre- and Post-Trial Supervised Release,” S. Rep. No. 186-2583 (Mass. 2010) (Conf. Rep.). This law was the second in the nation to codify the so-called “ban the box” provision, which prohibits public and private employers with more than six employees from asking about an applicant’s criminal offender record information (“CORI”) on an initial written application form.[3]

NATIONWIDE

In the last few years, the list of jurisdictions with similar laws has rapidly expanded. As of April 2015, seventeen states, including Massachusetts and the District of Columbia have adopted some form of ban-the-box legislation, although the details vary. Fifteen states (California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Rhode Island and Virginia) and the District of Columbia have adopted legislation limiting a public employer’s ability to make inquiries regarding an applicant’s criminal background at the application stage. Of these states, six (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Rhode Island) and the District of Columbia impose the prohibition on private employers, which advocates embrace as the next step in the evolution of these policies. In addition, nearly 100 jurisdictions nationwide have enacted similar legislation making it unlawful for state, city, county or other local agencies to inquire about an applicant’s criminal history on employment applications. At least twenty-five cities and counties now extend “ban the box” laws to private employers. The majority of these laws have been enacted within the last three years.

Private employers can expect additional cities and states to adopt “ban the box” legislation that reaches into the private sector and they should remain aware of the growing movement for “ban the box” legislation in cities and states in which they do business.

EEOC GUIDANCE ON CRIMINAL HISTORY

There is no federal ban-the box legislation. However, in 2012, the Equal Employment Opportunity Commission (“EEOC”) endorsed removing the conviction question from job applications as a best practice, making clear its position that federal civil rights laws regulate employment decisions based on arrests and convictions if those decisions implicate the antidiscrimination laws the EEOC enforces. The Antidiscrimination provisions of one of those laws, Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., could be violated in one of two ways by an employer.

First, studies have shown that employers may treat whites with a criminal record more favorably than similarly-situated minority applicants with the same or similar criminal record.[5] Treating individuals differently in the employment context (i.e. disparate treatment) is prohibited by Title VII.[6]   Second, racial and ethnic disparities in the criminal justice system can cause many more minorities to be automatically eliminated from consideration for jobs at the initial stage of the process than whites (i.e., “disparate impact”). This disparate impact of the criminal background check process on minorities can occur because minorities are arrested and convicted at a much higher rate than whites, and are statistically more likely to have a criminal record. Similarly, disparate impact is also a form of discrimination that is made unlawful by Title VII.[7]

As the federal agency that enforces Title VII, the EEOC has issued guidance on the use of arrest and conviction records in employment decisions. The EEOC’s Guidance advises employers relying on criminal history in making employment decisions to consider the following factors:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense, conduct and/or completion of the sentence; and
  • The nature of the job held or sought.

The Guidance further underscores the importance of an “individualized assessment” prior to excluding an applicant based on a criminal record, but also refers to permitting exclusions involving specific criminal conduct (i.e. “targeted exclusions”) that are “narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question.”)

MOVING FORWARD

Based on the growing momentum for “ban the box” legislation, employers should reevaluate their pre-employment and hiring practices. In particular, employers should review employment applications to ensure that all questions comply with local and state law. Employers should also ensure that all hiring and recruiting personnel are aware of “ban the box” laws and review all internal Human Resource policies. “Ban the box” legislation is likely to continue expanding in 2015. As a result, private employers that are not currently subject to such legislation should consider reviewing and revising their employment applications and should keep abreast of proposed “ban the box” legislation that may apply to them. Employers with questions regarding “ban the box” should consult with counsel.

[1] See Binyamin Appelbaum, Out of Trouble, but Criminal Records Keep Men Out of Work, N.Y. Times, February 28, 2015, at 2

[2]See note 5, below.

[3] Many of “ban the box” laws in other cities and states similarly apply only to employers of a certain size (for example, in New Jersey and Illinois, the law applies to those employers with 10 or more employees). By using the term “initial written application,” the law only prevents applicants from being automatically disqualified for employment because of a criminal record at the first stage of the application process. Employers may still question applicants about felonies and certain misdemeanor convictions at later stages of the process, such as during in-person interviews or on subsequent forms and/or applications. The law gives ex-offenders the opportunity to make it further along in the hiring process and to explain their criminal records in person. See M.G.L. c. 151B, § (4)(9½).[1] Importantly, the ban-the-box provision does not place any limits on employers’ decision-making power. Employers are free to make their own determination that an applicant’s criminal record makes him or her unsuitable for employment. The only condition imposed by M.G.L. c 151B(4)(9½) is that the applicant be given a chance to discuss the criminal record—both its accuracy and relevance to the job in question—before the employer makes the hiring decision.

[4]Employers are free to determine if or when it will inquire about criminal history, with one state agency, the Executive Office of Health and Human Services’ (“EOHHS”), asking whether an applicant has a criminal record only after the candidate has been given a conditional offer of employment. See 101 C.M.R. § 15.06(1)(A).

[5] See OFCCP Directive 306, “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin” (Jan. 29, 2013).

[6] See also 19 C.F.R. § 1607.11 (“Disparate treatment occurs where members of a race, sex, or ethnic group have been denied the same employment, promotion, membership, or other employment opportunities as have been available to other employees or applicants.”)

[7]] Disparate impact occurs when an employment practice that is facially neutral in its treatment of different groups has harsher consequences on one group than another. Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971) (“practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices”).  Criminal background checks have a much more pronounced impact on the minority population in the United States than it does on the white population because the former has an exponentially higher arrest and conviction rate than the latter. For example, according to FBI statistics, African Americans accounted for more than three million arrests in 2009 (28.3% of total arrests), even though they represented only about 13% of the total population in the past decade. Conversely, whites, who made up approximately 72% of the population in the last decade accounted for fewer than 7.4 million arrests (69.1% of total arrests). See Johnathan J. Smith, Banning the Box but Keeping the Discrimination?: Disparate Impact and Employers’ Overreliance on Criminal Background Checks, 49 Harv. C.R.-C.L. L. Rev. 197, 199 (2014). There is a real concern that racial profiling and other disparities in the criminal justice system are the cause for the higher numbers – not that racial minorities have a higher propensity for crime. The automatic disqualification of racial minorities from the hiring process at its initial stage because of a criminal record might support claims of disparate impact in violation of Title VII.

If you have any questions about the information presented here, need assistance with reviewing and updating policies, or would like to learn more about how Prince Lobel can address any of your employment law concerns, please contact Julie B. Heinzelman at 617 456 8088 or jheinzelman@PrinceLobel.com  and Joseph Edwards at 617 456 8131 or jedwards@PrinceLobel.com, the authors of this Alert or click here to contact any of the attorneys in the firm’s Employment Law Practice Group. 

Boston’s Imagination at its Finest

City skyline detailed silhouette. Vector illustration

Imagine a Boston where public engagement is encouraged.  Imagine a Boston where a vision for the City is created and then guides expansion and development. This is exactly what Boston’s Mayor Martin Walsh has proposed with the launch of “Imagine Boston 2030.” Imagine Boston 2030 is the City’s first comprehensive planning initiative in 50 years.  It is aimed at fostering collaboration among all stakeholders in the development of transportation and housing, while promoting the arts, preserving the environment and growing the City’s economic base.  It promises to be a pioneering opportunity to create a progressive movement within the City.

Imagine Boston 2030 could have a tremendous impact on residents and developers alike. Currently, the process that developers undertake to receive permits for zoning is prolonged, unpredictable and cumbersome. With Mayor Walsh’s initiative, the Boston Redevelopment Authority (BRA) will have more latitude to assess the needs of developers and residents which should  expedite development in underserved and underutilized neighborhoods. The team facilitating this process hopes to put an emphasis on neighborhoods that have the potential to adjust well to transit-oriented expansion.  Special priority will be given to economically disadvantaged residents, non-English speaking individuals, and youth to voice their opinions and ideas in public assemblies.

Zoning within Boston is a huge matter of concern for developers. Neighborhoods that are in need of a facelift will greatly benefit from the proposal as developers will be eligible to receive permits by right to assist in the construction of modern buildings to promote business and economic growth. Much of the city’s current redevelopment plan has been placed in the Downtown Boston area with the rapid construction of Millennium Tower and new retail and business spaces within its radius. Imagine Boston 2030 will focus on areas that are in need of renewal such as Allston’s Beacon rail yards and Forest Hill’s Eggleston Corridor.

As part of the initial phase of the six-stage process, Mayor Walsh announced a Request for Proposals (RFP) which outlines an approach for consulting services to assist in what is the first citywide plan in fifty years.  The RFP seeks a team composed of a lead consultant partnered with public outreach and communications services.  An extensive background in public engagements, outreach, and planning of citywide projects is needed to qualify for a spot on Mayor Walsh’s team. All responses are due by July 20, 2015.

Bostonians are currently being asked to visit the plan’s website to fill out a survey to target specific areas of concern.  Although the final plan is not expected to be implemented until Summer, 2017, Mayor Walsh believes that this new level of engagement and collaboration between residents, developers, businesses and organizations will create a thriving and groundbreaking city that surpasses each milestone of real estate development, economic prosperity and social growth.

– Craig Tateronis

Craig Tateronis

If you have any questions about zoning, permitting, or any other real estate law matters, please contact Craig Tateronis, a Managing Partner of Prince Lobel Tye and the author of this alert, at 617 456 8021 or ctateronis@PrinceLobel.comor click here to contact any of the attorneys in the firm’s Real Estate Law practice group. 

FTC updates endorsement FAQs, focuses on social media

The Federal Trade Commission, the government agency in charge of protecting consumers from deceptive and false advertising, published a set of Endorsement and Testimonial Guides in 2009. These Guides help advertisers understand the best ways to follow the law of the use of endorsements in advertising, and the proper way to disclose endorsers’ connections to advertisers to the public (see the Federal Trade Commission Act, Section 5).

While the Guides provided a number of hypothetical examples of how the law should be applied, (you can read those here), those examples only reflected social media scenarios as they were likely to exist in early mainstream social media.

Last week, the FTC published an updated “What People Are Asking” FAQ-type page that complements the Guides and provides a number of 2015-relevant scenarios under which disclosures should be made, and what they should look like.

An endorsement is an advertising message made on behalf of a sponsoring advertiser.  The endorsement must be honest, and the endorser must have actually used the product or service that s/he is endorsing.  If the writer of an endorsement has received something of value – cash, free product, free service, entrance into a sweepstakes, etc. – for making that endorsement, s/he must disclose that fact to the public.

It’s a matter of consumer protection from advertiser deception.  Consumers should feel comfortable that the endorsement is based on the endorser’s actual experience with the product or service. Consumers also have the right to know whether the endorser received something of value in exchange for the endorsement in order to determine for themselves what weight and credibility to give to the endorsement.

If a “significant minority” of consumers don’t understand the “material connection” between the endorser and the advertiser, a disclosure is required.  “Significant minority” is a pretty low bar, so the FTC suggests that when in doubt, it is better to disclose.

If you are a blogger or other digital influencer who is publishing content sponsored by a brand on your blog, on YouTube, or through any of your social media handles, you are an endorser, and this applies to you.  If you are a company engaging the endorser, you are the advertiser, and are obligated to ensure that the endorser follows the Guides, so this applies to you, too.

And in case you were wondering why these requirements aren’t trumped by free speech rights, it is because endorsements are typically commercial speech, which can be lawfully regulated by the FTC.

The following is an overview of what’s new from the FTC on this topic, along with some points reiterated or clarified from the original Guides.  I encourage you to read the full “What People Are Asking” at ftc.gov.

When and where do you need to make a disclosure?

Here’s the simple rule again:  A disclosure is required when an endorsement is made on behalf of a sponsoring advertiser.  There is no special wording required by the FTC to effectively make this disclosure.  “This post is sponsored by Company MNOP” or “Company RST gave me this product to try” will suffice.  The latter comes directly from the FTC.

A blanket disclosure somewhere on your website, like “Sometimes I write about products I receive from brands” in an “About” page or under “FAQs” is not sufficient.  The disclosure must be “clear and conspicuous.” That means it must be near the endorsement, in prominent font, not buried in text. (You can learn more about making effective disclosures here).

If the endorser writes about the product or service more than once, s/he should make the disclosure each time, because the reader of a blog post about Product Q in June might not have read April’s post about Product Q that contained the disclosure.

Continue reading

Medical Identity Theft

stock-photo-39788480-identity-theftMedical identity theft is on the increase. The Identity Theft Resource Center (ITRC) reports that as of March 30, 2015, there have been a total of 68 breaches involving 99,335,375 records reported in the medical/healthcare industry. See Identify Theft Resource Center 2015 Data Breach Stats, Report Date: 3/30/2015, pages 5-7, on their website. A “breach” is defined  to include an event in which an individual’s name plus Social Security Number, driver’s license number, medical record, or financial record (including credit/debit card) is potentially at risk either in electronic or paper format. Id. at page 2.

Medical identity theft usually occurs when a person’s name and part of the person’s identity, such as insurance information, are utilized by a criminal to acquire medical goods or services without the person’s consent. Typically, the criminal is uninsured but in need of medical goods and/or services. Medical identity theft frequently results in incorrect entries in the victim’s existing medical records, or it may result in the creation of a false medical record in the victim’s name.

Gary Cantrell, Deputy Inspector General of the Office of Inspector General (OIG) recently testified before the Subcommittee on Oversight of the House Ways and Means Committee regarding the OIG’s efforts to combat Medicare fraud. He stated that medical identity theft plays a key role in many of the Medicare health care fraud schemes investigated by the OIG. Often medical identity theft occurs with the use of recruiters or marketers. They entice Medicare beneficiaries to provide their identifying information including their Medicare numbers or Health Insurance Claim Numbers by promising them something of value in return such as money, services, equipment, prescriptions, or narcotics. Other times insiders may work in the health care profession which gives them access to beneficiaries’ personally identifiable information. These insiders acquire this information which they then sell to co-conspirators who have the ability to bill Medicare using the information.

In a sample survey of 49,266 respondents who were victims of identity theft in the United States, many reported a lack of confidence in their health care providers’ privacy and security measures to protect medical records. Seventy-nine percent of the respondents stated it is important for health care providers to ensure the privacy of their medical records; 48 percent stated they would consider changing health care providers if their medical records were lost or stolen; and 40 percent stated it is important for health care providers to provide prompt notification of a breach. Ponemon Institute, Fifth Annual Study on Medical Identity Theft, February 2015, pages 3 and 4.

What Steps Can Health Care Providers Take to Prevent or Mitigate Medical Identity Theft?

While health care providers may have implemented HIPAA policies and procedures to protect against the unauthorized use or disclosure of protected health information (which may result in identify theft), many health care providers may not have implemented a Red Flags Rule Program. Whether a health care provider is required to implement a Red Flags Rule Program depends on whether it falls within the definition of “creditor” under the Red Flags Rule. There are a series of questions, the answers to which determine whether a health care provider falls within the definition of a creditor.

Does the health care provider regularly:

Defer payment for goods and services or bill customers? or Grant or arrange credit? or Participate in the decision to extend, renew, or set the terms of credit?

If the answer to any of the above three questions is “yes”, then does it regularly or in the ordinary course of business:

Obtain or use consumer reports in connection with a credit transaction? or Give information to credit reporting companies in connection with a credit transaction? or Advance funds to or for someone who must repay them, either with funds or pledged property (excluding incidental expenses in connection with the services provided?

If the answer to one or more of the above three questions is “yes”, the health care provider is a creditor covered by the Red Flags Rule. Even it the answer is “no” implementing a Red Flags Rule Program can be beneficial. A Red Flags Rule Program will assist health care providers in identifying identity theft by looking for the “red flags” or patterns, practices, or activities that indicate the possible existence of identity theft. A Red Flags Rule Program will also assist providers in taking steps to prevent or mitigate identify theft.

-Rochelle

Zapol

If you have any questions concerning medical identity theft or the privacy and security of medical records or would like assistance in developing a Red Flags Rule Program, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice and the author of this alert. You can reach Rochelle at 617 456 8036 or rzapol@PrinceLobel.com.

Asya Calixto Answers NENPA’s Media Law Hotline “Question of the Week” on Storing Subscriber’s Information and Private Policy

Question: My paper is considering moving to a new system of storing subscriber information, and we think we should revise our privacy policy as part of this process. What should we be considering as we do so?

Answer: You should certainly update your privacy policy to reflect changes in how you collect, use, and store information about visitors to your website. The Federal Trade Commission’s latest enforcement actions serve as a reminder of the importance of being honest and transparent with your visitors. For example, the FTC reprimanded Snapchat for telling its users that messages sent through Snapchat would disappear forever several seconds after they were received, when in fact there were well-known and widely available methods for a recipient to capture and store the messages indefinitely. American Apparel also got into trouble for representing in its privacy policy that it was complying with a self-regulatory privacy program, when in fact its certification had lapsed. The lesson? Don’t make promises you can’t keep. Be realistic, and revisit your privacy policy to make sure that what you convey to visitors is consistent with your practices.

Click here to read Asya’s complete answer.

The Media Law Hotline is a service offered free of charge to NENPA members in good standing, and is staffed by the media and intellectual property lawyers at Prince Lobel Tye LLP. You can reach the NENPA Hotline at 1-888-428-7490 or by email at media@princelobel.com.

Asya Calixto

Officers’ arrest records and mugshots are fair game under Massachusetts law

Thanks to The Boston Globe’s Todd Wallack, we learned last week that the supervisor of records, charged with enforcing the Massachusetts public records law, has permitted police departments to withhold arrest reports and mug shots from the public in their “discretion.” Unsurprisingly, police departments have exercised that “discretion” to shield the identities of police officers arrested for drunken driving while publicizing the arrests of other Massachusetts residents for the same crime.

Yesterday, Secretary of State William Galvin took to Jim Braude’s “Greater Boston” show on WGBH-TV (Channel 2) to defend the rulings. He pointed out that he had previously ruled arrest reports to be public, but said he had to back down because another agency, the Department of Criminal Justice Information Systems (DCJIS), told him the records are secret under the “criminal offender record information” (CORI) statute. Former attorney general Martha Coakley shared that view, Galvin said, and the new attorney general, Maura Healey, has tentatively agreed.

But are they correct? Does the law allow the police officers to decide which arrest reports do and do not get released? The answer, thankfully, is no.

First, some quick background. The public records law creates a presumption that all government records are public. Only if a specific, listed exemption applies can the government withhold documents, and those exemptions are supposed to be construed narrowly. Galvin relies on the exemption for records “specifically or by necessary implication exempted from disclosure by statute,” here, the CORI law. The CORI law does impose certain limits on the disclosure of “criminal offender record information,” but it limits that term to information “recorded as the result of the initiation of criminal proceedings and any consequent proceedings related thereto.”

The word “initiation” is important. As late as 2010, Galvin’s office held the commonsense view that a “criminal proceeding” is initiated with the filing of a criminal complaint. Arrest reports and mug shots are generated before criminal complaints are filed, so they’re presumptively public. But in 2011, the DCJIS (which administers the state’s CORI database) told Galvin it believed “initiation of criminal proceedings” means “the point when a criminal investigation is sufficiently complete that the investigating officers take actions toward bringing a specific suspect to court.” That necessarily precedes arrest and booking, so all arrest reports and mug shots are covered by CORI. This “interpretation” is now contained in a DCJIS regulation. Another regulation says that police can release CORI information surrounding an investigation if they think it’s appropriate to do so.

In the common parlance, however, “criminal proceedings” occur in court, and they begin with the filing of a criminal charge. We don’t typically think of an arrest without charges as involving a “proceeding.” Galvin seems to agree — his office’s rulings have said only that DCJIS believes“initiation” occurs earlier — but he has thrown up his hands and deferred to this odd “interpretation” of the CORI statute.

The thing is, Galvin isn’t bound by what DCJIS says. The public records law says that the supervisor of records is entitled to determine “whether the record requested is public.” The DCJIS’s regulation adopting this view is irrelevant, too, because as noted above, the public records law only exempts documents “specifically or by necessary implication exempted from disclosure by statute.” The Supreme Judicial Court ruled in 1999 that the “statutory” exemption doesn’t extend to mere regulatory enactments “promulgated under statutory authority,” even “in close cooperation with the Legislature.” Despite this ruling, just Wednesday, Galvin’s office again refused to order state police officer mug shots to Wallack on the ground that “[b]y regulation,” — not statute — they are exempt CORI documents.

Wallack’s reporting has led us to a momentous Sunshine Week in Massachusetts. We’ve seen unusual, coordinated editorials in major Massachusetts newspapers condemning the rulings, a letter published in the Globe, the Boston Herald and GateHouse Media newspapers (including The Patriot Ledger of Quincy and The Herald News of Fall River) signed by members of the Northeastern Journalism School faculty, and extensive coverage on the normally neglected subject of government transparency.

To his credit, Galvin is calling for reforms to the public records law, and Attorney General Healey has vowed to work with his office to strengthen transparency. Reforms are sorely needed, especially to require shifting of attorneys’ fees if a requester successfully sues. But in the meantime, Galvin can and should reconsider his misguided rulings on arrest records.

– Jeffrey J. Pyle

Pyle_colorhighres_2012

If you have any questions about the information presented here, or would like to learn more about how Prince Lobel can address any of your media law concerns, please contact Jeffrey Pyle, the author of this post, at 617 456 8143 or jpyle@PrinceLobel.com, or click here to contact any of the attorneys in the firm’s Media Law practice group.