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We are Working in a Virtual, Video-Conferencing World – But What About Wiretapping?

Businesses and other organizations often have a need or desire to record telephone conversations related to their business interests and customer dealings; however, this practice is not always permissible as federal and state laws vary on this issue. Knowing and understanding your jurisdiction’s rules and regulations on this practice is essential to remaining in compliance with the law. 

Under the federal Wiretap Act, phone conversations typically may be recorded as long as one party to the conversation consents. Exceptions to this general rule exist, however, including when the consenting party intends to use the recording for criminal or tortious purposes. 

With that said, a state law that varies with the federal by requiring a more stringent two-party consent standard will supersede federal law. Moreover, state laws which do follow the federal one-party standard, but address and outline allow different or additional exceptions to the standard will rule in that regard as well. 

It should further be noted that these laws extend to virtual meetings as well, including those conducted through video-conferencing technologies such as Zoom, Microsoft Teams, etc. — even if the purpose of the meeting is for educational and/or training programs. As popularity in the use of these platforms is on the rise, businesses should be mindful of the civil and/or criminal liabilities associated with the use of these technologies, particularly when seeking to record sessions.

So, what should you do if you believe that you’ve been recorded? Can you ask if you’re being recorded, and does the person answering have to be honest in their response? Unsurprisingly, the answers to these questions vary by jurisdiction as well depending on how strict of a standard your state follows. A one-party consent state has different and more lenient requirements than a two-party consent state. 

Penalties for failing to follow any of the above-mentioned federal and/or state wiretapping laws are serious, so ensuring notice and consent before recording as required can mean the difference between compliance and potential fines as well as prison time. 

Knowing and understanding the implications and permissibility of recording phone and/or video conferencing conversations is increasingly important in light of ongoing stay-at-home orders leading to the growing use of these technologies. If you have any questions regarding the scope of your specific jurisdiction’s law on these issues, please contact Amanda L. Waesch, Esq. at alwaesch@bmdllc.com.

Investment Training for the Second and Third Generations

Consider this scenario. Mom and Dad started the business from the ground up. Over the decades it has expanded into a money-making machine. They are able to sell the business and it results in a multimillion-dollar payday for their labors. The excess money has allowed Mom and Dad to invest with various financial advising firms, several fund management groups, and directly with new startups and joint ventures. Their experience has made them savvy investors, with a detailed understanding of how much to invest, when, and where. They cannot justify formation of a full family office with dedicated investors to manage the funds, but Mom and Dad have set up a trust fund for the children to allow these investments to continue to grow over the years. Eventually, Mom and Dad pass. Their children enjoy the fruits of their labors, and, by the time the grandchildren are adults, Mom and Dad's savvy investments are gone.

Provider Relief Funds – Continued Confusion Regarding Reporting Requirements and Lost Revenues

In Fall 2020, HHS issued multiple rounds of guidance and FAQs regarding the reporting requirements for the Provider Relief Funds, the most recently published notice being November 2, 2020 and December 11, 2020. Specifically, the reporting portal for the use of the funds in 2020 was scheduled to open on January 15, 2021. Although there was much speculation as to whether this would occur. And, as of the date of this article, the portal was not opened.

Ohio S.B. 310 Loosens Practice Barrier for Advanced Practice Providers

S.B. 310, signed by Ohio Governor DeWine and effective from December 29, 2020 until May 1, 2021, provides flexibility regarding the regulatorily mandated supervision and collaboration agreements for physician assistants, certified nurse-midwives, clinical nurse specialists and certified nurse practitioners working in a hospital or other health care facility. Originally drafted as a bill to distribute federal COVID funding to local subdivisions, the healthcare related provisions were added to help relieve some of the stresses hospitals and other healthcare facilities are facing during the COVID-19 pandemic.

HHS Issues Opinion Regarding Illegal Attempts by Drug Manufacturers to Deny 340B Discounts under Contract Pharmacy Arrangements

The federal 340B discount drug program is a safety net for many federally qualified health centers, disproportionate share hospitals, and other covered entities. This program allows these providers to obtain discount pricing on drugs which in turn allows the providers to better serve their patient populations and provide their patients with access to vital health care services. Over the years, the 340B program has undergone intense scrutiny, particularly by drug manufacturers who are required by federal law to provide the discounted pricing.

S.B. 263 Protects 340B Covered Entities from Predatory Practices in Ohio

Just before the end of calendar year 2020 and at the end of its two-year legislative session, the Ohio General Assembly passed Senate Bill 263, which prohibits insurance companies and pharmacy benefit managers (“PBMs”) from imposing on 340B Covered Entities discriminatory pricing and other contract terms. This is a win for safety net providers and the people they serve, as 340B savings are crucial to their ability to provide high quality, affordable programs and services to patients.