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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.

Time to Update Your HIPAA Compliance Plan for Telehealth Policies and Procedures

The delivery of healthcare in this country may be forever changed following the COVID-19 pandemic. Providing services through telehealth technologies initially allowed providers to connect with patients in a safe and socially distant manner and helped keep vital hospital beds free for COVID-19 care. Now, while still a safe, socially distant option, telehealth allows patients to access healthcare services in an efficient manner, decreases the likelihood of cancellations, and expands access to services that do not require an in-person encounter (i.e., surgery, procedure, or test). Telehealth is now widely reimbursed by both federal and commercial payors and more provider types are able to provide telehealth services within their licensed scope of practice.

The SEC Amends Accredited Investor and Qualified Institutional Buyer Definitions

The SEC Amends Accredited Investor and Qualified Institutional Buyer Definitions

Landlord Alert: CDC Issues Temporary Halt in Residential Evictions

On September 1 the Centers for Disease Control and Prevention (“CDC”) issued a nationwide temporary halt on all residential evictions through December 31, 2020. With the July 24, 2020 expiration of the prior moratorium established under the CARES Act, the CDC based the new moratorium on the need to protect public health and the likely increase in the spread of COVID-19 if mass evictions take place.

BMD Obtains Supreme Court Victory on Behalf of Sterilite of Ohio, LLC

Columbus, Ohio – On August 26, 2020, the Supreme Court of Ohio issued its opinion in Lunsford v. Sterilite of Ohio, LLC, Slip Op. No. 2020-Ohio-4193. The Supreme Court’s 4-3 decision reversed an Ohio Court of Appeals ruling that had reinstated a putative class action against Sterilite brought by a group of current and former employees claiming that Sterilite’s use of “direct observation” urinalysis screening violated their common law right to privacy.

Provider Relief Fund Phase 2 & Reporting Requirement Updates – Deadline to Request Phase 2 Funds is August 28, 2020

On July 31, 2020, the Department of Health and Human Services (“HHS”) announced that certain Medicare, Medicaid (managed care and fee-for-service), CHIP, and other providers would be given another opportunity to receive additional Provider Relief Fund payments. HHS has allocated around $15 billion for Phase 2 distribution. Providers are eligible for these new distributions if they fulfill the following criteria and have not yet received a Provider Fund payment equal to approximately 2% of their revenue from patient care.