The Florida Session Ending on some Positive Notes

It has been an exciting Florida legislative session in 2020. The calendar is variable in Florida; if this were an odd-numbered year, the session would begin "the first Tuesday after the first Monday in March" (March 3, 2020); we would just be getting started. But, as it is an even-numbered year, the session began "the second Tuesday after the first Monday in January," and thus March marks the end rather than the beginning. Article III, Section 3(b), Florida Constitution. 

As the session winds down for 2020, there is a discussion of the budget. That bears some edification perhaps. 

The Joint Rules of the Florida Legislature require that: 

"A general appropriations bill shall be subject to a 72-hour public review period before a vote is taken on final passage of the bill in the form that will be presented to the Governor." Rule 2.1. 

Thus, while the session is scheduled for 60 days, the actual end of the session may possibly be dictated by the process of finalizing the 2021 budget (our fiscal year starts July 1, 2020). On March 3, 2020, Center Square reported that the session might require an extension to accommodate the budget process. While Friday was the goal, it appears a few more days are in store. 

On March 9, 2020, Center Square reported that the budget talks were progressing, and it reiterated the prediction that this session might extend (later that day, it reported the coronavirus may be complicating that process). But, it also noted that there appears to be agreement this year on a raise for state employees. This would reportedly be a "three-percent across-the-board pay raise for state workers." This is not what the American Federation of State, County, and Municipal Employees sought (5%), but it is significant. The article notes that "since 2008": 

"state workers have received two pay raises. In 2013 and 2017, those making more than $40,000 per year received $1,000 raises and those making less than $40,000 received $1,400 raises." 

It is gratifying to see the potential of a significant pay raise for the state employees who strive to make this workers' compensation system effective, efficient, and timely. The Florida OJCC has some exceptional team members and this recognition of their service is welcome. 

This year also looks positive regarding a long-deteriorating pay issue for JCCs (June 2017). On March 9, 2020, the Florida Senate took its final vote on CS/SB 1298 (filed 12/19/19). That action laid the Senate Bill on the table, and the Senate adopted instead HB 1049 (filed 12/30/19). Since filing, these two parallel and later identical bills have traversed long paths through the committee processes. Florida is blessed with a legislative committee process that affords everyday Floridians a voice. Anyone can appear at a legislative committee meeting to voice support, opposition, or questions regarding a bill. This process is critical to open government, but with only so many minutes in a day, and so many days in a session, getting a bill heard in committee is itself sometimes a challenge. 

On January 14, 2020, the session convened. These two legislative proposals were among thousands filed. And, through the efforts of The Florida Bar Workers' Compensation Section generally, and Mr. Richard Chait specifically, the bills later began to move. The Senate bill received a favorable committee vote in late January, and the House bill did likewise in early February. Those early signs of progress were heartening. Various committees thereafter discussed these bills, and they proceeded recently to the floors of the two chambers. 

March 6, 2020, was an important day. The House passed HB 1049 on Second Reading and the Senate passed SB 1298 on second reading. With the challenges of a short session and many competing legislative priorities, reaching those second-reading votes was a significant achievement. Then each chamber scheduled its respective bill for the Third Reading on Monday (yesterday).

Monday morning, the Senate reached this JCC topic first, and Senator Benacquisto (filling in for Senator Simmons, the sponsor of SB 1298, who was then presiding) asked to defer action on SB 1298 ("temporarily postpone"). The House later proceeded to a unanimous Third-Reading vote in favor of HB 1049, and its action was sent to the Senate in messages. That afternoon, the Senate again called SB 1298, and Senator Simmons (the sponsor) asked to lay SB 1298 on the table, and for the Senate to instead take up HB 1049. The Senate then passed the House bill unanimously. Within seconds, my cell phone began to erupt with reactions.

CS/HB 1049 was ordered "enrolled" by the House on Monday afternoon. An "enrolled bill": 

"is a bill that has passed both houses of the legislature in identical form and has been converted into an act for presentation to the Governor or Secretary of State." 

Thus concludes a long and emotional legislative process. For those of us who are not involved daily, the process is daunting and often confusing. 

This bill has been a long-term goal of The Florida Bar Workers' Compensation Section. Its commitment to "an increase in the salaries of Judges of Compensation Claims" has been a legislative goal, which is consistent with the primary legislative positions of The Florida Bar: "adequate funding of the state courts system." It has also long been a goal of the OJCC. Recently, not a public appearance has occurred without someone asking me about the progress of this effort. It was heartwarming to see it come to a conclusion yesterday. 

The Florida Office of Judges of Compensation Claims (JCC) is a creation of statute. Chapter 440, F.S. once included a paragraph that tied JCC salaries to the Circuit Court judges. That "tie-in" was inadvertently removed from the statute in 1994. Since that tie-in was removed, the salaries of Judges of Compensation Claims have not increased commensurate with the state court judge's or with inflation. While historically JCCs earned close to the mid-point between circuit and county judges, this century their earnings have been markedly less than either. This is all explained in detail in Appendix 18 to the 2019 Annual Report of the Florida Office of Judges of Compensation Claims. 

It is believed that the effect of inflation on those earnings has led to a diminished interest in this particular government service. Over the years, vacant JCC positions have attracted ten or more applicants. However, recently, the number of applicants has been fewer. In some instances, an advertised vacancy recently has attracted only one applicant. This lack of interest frustrates the process because the statute requires that the Governor select "from a list of three persons nominated." Thus, some positions have required multiple advertisements/postings to achieve a minimum for the Governor's consideration. And, there have been instances in which ultimately only three people applied. 

It is hoped that the passage of HB 1049 will provide additional motivation for the best and brightest to apply to serve as a JCC. As I reflect on the years I have served, it is an honor to have been associated with some great judges. It is my hope that people of such caliber continue to apply in the future and to seek to serve all Floridians in this critical role. 

There is ample credit due for the passage of this bill. Certainly, as mentioned, Mr. Richard Chait deserves much of the credit. His long hours and tireless dedication to passage this session are particularly worthy of recognition. The Workers' Compensation Section has long advocated this amendment. This includes current Chair Glen Weiland, as well as past chairs Bill Rogner, Michael Winer, Paul Anderson, Leopoldo Garcia, Dawn Traverso, Christopher Smith, and Alan Kalinoski. Former JCC Richard Thompson also deserves significant credit for this legislative success. These leaders have remained committed, steadfast, and dedicated to a strong Florida workers' compensation adjudication process. I am grateful for their words, actions, and commitment. My congratulations on their success this year.

In all, the 2020 legislative session is likely to be remembered by the Florida workers' compensation world. In the end, the work of many has benefited a great workers' compensation community and the workers and employers that depend upon it.

Hearsay and Authenticity

The Florida First District Court of Appeal decided Blanco v. Creative Mgt. Svcs., 281 So.3d 598 (Fla. 1st DCA 2019). It is an interesting discussion of the process for admitting evidence in a proceeding, but also provides reminders of the deference that appellate courts afford the trier of fact in making credibility determinations and the burden of proof. There are those who find the Court's conclusions in Blanco difficult considering other decisions on the topic of independent medical examination reports. The subject bears discussion, in the context of distinguishing hearsay objections and authentication objections. For more on hearsay, see Better Understanding the Hearsay Rule (March 2016).  

In Blanco, the injured worker did not prevail in his claim for workplace exposure. He appealed, complaining that an independent medical examiner (IME) report was admitted as evidence at trial. The Florida Occupational Disease Burden (December 2019) was also a recent post topic that is relevant in that regard. In this instance, the objection to the IME report was two-fold. First, the injured worker contended the doctor could not express opinions regarding lung injury because he was not a board-certified pulmonologist or internal medicine specialist. Second, he contended that the IME report was hearsay. 

The Court did not accept the credential argument. It explained that expertise may be founded upon board certification or education, but it is not necessarily limited to "academic, scientific, or technical knowledge.” The Court explained that the doctor's certification in occupational medicine, "extensive experience in exposure cases," and extensive training rendered him qualified to express opinions on the pertinent questions. 

The injured worker relied upon a published decision of the Florida Second District Court of Appeal. McElroy v. Perry, 753 So. 2d 121, 126 (Fla. 2d DCA 2000). The Court in McElroy concluded that such an IME report "prepared solely for litigation" lacked "trustworthiness," and was appropriately excluded from evidence. Notably, the Second District noted in its decision that it had found "no Florida cases expressly addressing the admissibility of an IME report as a business record," and the First District in Blanco noted that Court had "apparently overlooked" the 1997 decision relied upon by the JCC in Blanco: Heckford v. Department of Corrections, 699 So. 2d 247 (Fla. 1st DCA 1997).  The Second DCA failure to acknowledge that precedent is troubling. 

Therefore, as to the business record exception for hearsay, the Florida First District has concluded that IME reports are admissible. That determination is controlling in workers' compensation proceedings throughout Florida and may be so due to specific workers' compensation statutes. The Court specifically noted the IME process, and selection of IME providers, are statutorily created in workers' compensation. The Court added that the concern of the McElroy Court, regarding an effect of the report on a jury, is not of concern in workers' compensation. Whether such reports would be admissible outside of workers' compensation or outside of the geographic area of the First District, without further foundation, is a question worthy of asking by those involved in such cases. 

The Court also reminded that a trial judge is best situated to "observe . . . demeanor," and make credibility determinations. Thus, the Court declined to undertake re-making that decision. 

Practitioners should also consider that in 2012, the First District Court decided Young v. American Airlines, 100 So. 3d 1168 (Fla. 1st DCA 2012). There, the Court concluded that admitting an IME report was error. The Court held that the reliance upon that document by the judge was improper, and reversed the judge's decision that was based upon it. At first glance, some will see a conflict between these two decisions. 

The issue in Young was different, however. In Young, the objection was not that the IME report was hearsay, but that it was not authenticated. The Court noted that authentication is not necessary for records that are described in section 440.29(4), Florida Statutes: 

"(4) All medical reports of authorized treating health care providers relating to the claimant and subject accident shall be received into evidence by the judge of compensation claims upon proper motion." 

The Court explained that this provision does not apply to IME reports, as the language specifically says "authorized treating health care providers." Therefore, the admission of the IME report was reversed by the Court in Young on authentication grounds. Authentication refers to the "genuineness vel non (or not) of a document." That is, is the IME report actually the IME report. This is something often stipulated by parties to a case but may be an objection raised in other cases. 

This illustrates a challenge in any litigation, that there may be various objections raised (or at least potential) regarding a document. A party might object based on hearsay, authentication, and even "best evidence" (the requirement for originals rather than copies). A responsive argument regarding hearsay (it is a business record, or is not hearsay) would not answer the other two objections. Similarly, a stipulation to the use of copies would answer the "best evidence," but not the authentication or hearsay. When compound objections are made, then compound responses are required. 

Thus, the answer to "Are IME reports admissible in evidence" is likely to be "It depends." It depends on what court you are in, and what the specific evidentiary objection is that has been raised. Admittedly not the most forthcoming or enlightening answer. But, to answer the question fully, one would have to know if the other parties object to the document and if so what the basis is for the objection(s). Lawyers are responsible for the details, and often, that is where the devil lies.

"Toto . . . we're not in Kansas anymore"

About 30 months ago, I published Kansas Cannot Prosecute Identity Theft. The crux of the piece regards a decision by the Kansas Supreme Court that held any information that is ever inserted into an I-9 form receives therefore complete immunity from the application of any state law. In the case being discussed, a worker applied for a job with someone else's social security number (what some states consider to be fraud or identity theft). The police arrested this gentleman and he was prosecuted for using someone else's information on a W-2 form, but that information was also on the I-9 form. 

The gentleman was convicted and appealed. His contention was that the Immigration Reform and Control Act of 1986 (IRCA) meant that any information placed on an I-9 form could not be used to prosecute for identity theft. He contended that placing the "borrowed" information on an I-9 immunized any other use of that same information. Thus, when he placed the same information on the W-2 form, he contended that state prosecution for that W-2 (and on a similar state tax form, the K-2) statement was forbidden by federal law. The Kansas appeals court did not buy that argument. However, the Kansas Supreme Court did. 

It was not unanimous. Justice Biles dissented (Joined by Justice Stegall). He noted that:

"The majority's rationale sets up a sweeping prohibition against identity theft prosecutions for such crimes generally occurring in the employment process." 

He perceived that I-9 prohibition as a "narrow area controlled by Congress through" IRCA. He lamented the Court's conclusion that the use of some piece of information in the I-9 immunized other uses of the same purloined data when used in other contexts. 

Justice Biles contended that the prohibition on the use of "any information contained in the form" really only means that the "contents of the completed form could not be used to prosecute." Therefore, he argued that when such identical information was used in any context outside the actual I-9 form then the IRCA prohibition carried no weight. But, again, this was the dissent rather than the Court's holding. 

Kansas brought the case to the Supreme Court of the United States (SCOTUS). Notably, the SCOTUS only reviews about 100 cases each year. It is an exceptional achievement for a lawyer to have a case reviewed (the SCOTUS actually reviewed three cases here with the same legal question; the other criminal defendants were Morales and Ochoa-Lara).

on March 3, 2020, the SCOTUS handed down its decision regarding the interaction of state and federal law, specifically the IRCA. Justice Alito wrote the opinion, joined by Justices Roberts, Thomas, Gorsuch, and Kavanaugh. Justice Breyer wrote a dissent, joined by Justices Ginsberg, Sotomayor, and Kagan. Court watchers will note this is a 5/4 decision, a close win for Kansas but a win nonetheless.

The SCOTUS majority concluded that the IRCA does not preempt state law prosecution for using someone else's identity on various employment forms. The preemption instead is limited to the use of the completed I-9 form, much as Justice Biles suggested in 2017. The Court noted that it has previously decided that state laws that criminalize working without appropriate authorization and documents are preempted by IRCA. Justice Alito explained that IRCA does not similarly "address the use of other documents, such as federal and state tax-withholding forms."

Justice Alito noted that IRCA thus specifically creates certain criminal penalties. And, its plain language "expressly 'preempt[s] any State or local law imposing civil or criminal sanctions'" on employers and recruiters for failures to comply with that law. However, Congress did not similarly include such penalties regarding the employee or worker. This specific inclusion of certain penalties, but not others, demonstrates the intention of Congress as to the law's meaning. 

The opinion provides an in-depth discussion of federal supremacy (which is nonetheless questionable to some in the age of decriminalized pot) and the analysis by which the courts will determine if federal action preempts state regulation. There is some suggestion that preemption really should only be founded upon "express terms," rather than being "inferred from statutory law." (slip opinion at 9). The decision is illuminating on the foundations of express preemption, field preemption, and conflict preemption. It is a worthy discussion but exceeds the scope of this post. 

Justice Alito was critical of the Kansas Court majority analysis. He noted that the idea of any information being placed on an I-9 therefore being immunized for any and all other expression of that information:

"would mean that no information placed on an I–9 - including an employee’s name, residence address, date of birth, telephone number, and e-mail address - could ever be used by any entity or person for any reason."

He concluded that "This interpretation is flatly contrary to standard English usage." It is true that "tangible objects" can be "contained," he explained. But, "information is different." Information may exist in "many different places" simultaneously. The inclusion of information in one form does not isolate or sequester that particular information. Furthermore:

"it is not customary to say that a person uses information that is contained in a particular source unless the person makes use of that source." 

Through a series of examples regarding email addresses and school reports, Justice Alito highlights the fallacy of the broad immunization of information theory relied upon by the Kansas Court. 

Next, Justice Alito highlighted some absurd results that might flow from the Kansas Court's immunization theory. For example, the Kansas Court interpretation could preclude the federal government itself from prosecuting the provision of false information on its own form, the W-2. According to the Kansas Court, according to Justice Alito's opinion, an employee truthfully inserting her/his name on an I-9 would thus preclude anyone, anywhere, from using that employee's "name for any purpose." (Slip Opinion at 13). 

The IRCA, concluded the majority, "certainly does not bar all state regulation regarding the “use of false documents." Though various forms may be completed near the same time, that does not mean that the information used to complete the I-9 in that overall process is somehow rendered special, immune, and untouchable. In short, the Court concluded that the regulation of the IRCA is not sufficient to conclude Congress' intended to regulate the entire "field," and thus it denied the argument for "field preemption." 

Justice Thomas specifically concurred with a separate opinion (Joined by Justice Gorsuch). He advocates a broader abandonment of decisional jurisprudence regarding the analysis of "'purposes and objectives' preemption." He is thus critical of stare decisis in this setting. He contends that for preemption to apply, state and federal law must be in "logical contradiction." This requirement, he contends, eliminates "judicial guesswork" and analysis of "policy objectives, legislative history, or generalized notions of congressional purposes not contained within the text of federal law." This opinion is thus a notable textualist expression and illumination. 

Justice Breyer (and the other three dissenting justices) agree that nothing in IRCA "expressly preempts Kansas’ criminal laws as they were applied." The disagreement of the dissent is focused instead on the "implied preemption." In that regard, the dissent argues that "the words of the statute are especially unlikely to determine the answer by themselves." This is seemingly a broadly phrased antithesis of textualist thought, a seeming argument that the words chosen by legislative bodies cannot themselves convey the meaning intended. Thus this view is seemingly focused always upon implication and motivation, rather than the expression itself. 

The dissent's analysis of "text, . . . structure, context, and purpose" leads inescapably to the “‘clear and manifest' conclusion that the federal government," in IRCA, "has occupied at least the narrow field of policing fraud committed to demonstrating federal work authorization." Justice Breyer concludes that "that the States thus may not make criminal what Congress did not." (Citation omitted). In that, he perhaps ignores that federal law prohibits the use of false information on the W-2; thus, Congress has in fact made illegal precisely that for which the defendants were prosecuted. Furthermore, the dissent does not, in that "narrow field" analysis credibly distinguish the majority opinion, which concedes the narrow preclusion of the use of the I-9 form itself. 

Justice Breyer relies heavily on the purpose of misrepresentation. He contends that if an employee lies on the W-2 form for another purpose than those related to immigration, then "IRCA would permit prosecution." Thus, the dissent contends that it is not the making of false statements that is relevant, but the reason or intent of the person making the false representations; this is perhaps an invitation to extended and subjective analysis of honesty and intent. The dissent accuses the Court of "opening a colossal loophole," as various forms have to be completed for employment. In the dissent's view, lying on one form should immunize the applicant's lies on any other forms. The dissent simply views the criminalization of identity theft as precluded by federal law. 

It is a curious position previously adopted by the Kansas Supreme Court, shared now by the SCOTUS dissent. I concluded in 2017 that identity theft was no longer illegal in Kansas. Well, apparently "Toto, I've a feeling we're not in Kansas anymore." The SCOTUS has concluded that states can criminalize identity theft in the general sense, but merely cannot use the I-9 form itself. That seemed logical in 2017 when Justice Biles suggested it, and it seems logical now. Justice Alito's opinion explains that logic clearly and this straightforward distinction is now the law in Kansas and elsewhere.

The decision highlights two schools of thought. One that the actual words of a statute should be read and used to determine the meaning of the law. The other is that such words cannot convey meaning and all interpretation must therefore rely upon subjective explorations of intent and context. An intriguing conflict of judicial ideology indeed. 

"The" Post

In the 1970s, there was an odd movie produced by Neil Simon: Murder by Death. It included a cavalcade of talent including Eileen Brennan, Truman Capote, Peter Falk, Alec Guiness, Peter Sellers and more. For the "non-boomer" reader, these were once Hollywood superstars, one and all. Neil Simon was a prolific writer responsible for shows dating to the 1940s. This movie is sometimes confused with Clue that followed the next decade, perhaps because that too starred the unparalleled Eileen Brennan. 

Murder by Death featured jokes with more offense. There were unfortunate plays on words, ribald jokes, and various exhibitions of inappropriate intolerance. It is most doubtful that such a film would be released today. In just one such unfortunate string of dialogue, the writers belittle a Chinese detective who has made various statements without including "the." The character played by Truman Capote loses his temper and the following exchange occurs:

Sidney Wang: What meaning of this, Mr. Twain? 

Lionel Twain: I will tell you, Mr. Wang, if YOU can tell ME why a man who possesses one of the most brilliant minds of this century can't say his *prepositions* or *articles!* "What IS THE," Mr. Wang! "What IS THE meaning of this?" 

Sidney Wang: That what I said! "What meaning of this?"

I am not sure why, but that exchange stuck with me over the years. It is likely how I first remembered the part of speech called an "article." I am not sure why we need to know such labels, but I recall one of my grade school teachers finding importance there. 

I was reminded of this exchange, and the article "the" when I recently read Is this the most Powerful Word in the English Language? on the British Broadcasting Corporation (BBC) website. The author makes a case for the primacy of the ubiquitous "the," despite it not being "descriptive, evocative, or inspiring." Perhaps its influence is in frequency; we are told that it is the most frequently used English word in English, "accounting for 5% of every 100 words used.“ The is pervasive. 

This article proceeds to explain that "the" and other words like it are "functional words." It/they help us to "make sense" of nouns as either "a subject or an object." Thus, we have a distinction in our expression between "I ate an apple" and "I ate the apple." There is a "signal (of) something important" with "the." It focuses us on the distinction that is this particular apple. With "the," we perceive importance in what follows, a particularity. An interviewee for the story reminds us that words are not necessarily singularly important, but instead "power in language comes from context."

It is also noted that "the" does not exist in all languages. Instead, some languages utilize "an affix" on the end of a word to denote the particular rather than general connotation between "an apple" and "the (particular) apple." Other languages use neither such an affix nor an article. Therefore, those who natively speak other languages may struggle to "construct a sentence in English," because of the reliance it places on articles. There is therefore the factual foundation for why Mr. Wang might struggle to utilize such an article. 

The article notes that even native English speakers may be markedly different, specifically referring to "British and American English." It concludes that the British are perceived as opting for "the" in instances in which Americans do not. I have long been distracted when a British speaker says someone is "in hospital." But, it contends that we are perhaps not even consistent individually in our use of "the." And, as curious, we are not necessarily consistent between our verbal and written use of "the." It is considerable, with "the" generally occurring "about a third less in spoken language."

There is allegedly or perceptively also a gender issue. The article says that men are more likely to use "the." A provided explanation for this is troubling, referring to tendencies to "take the voice of authority." It notes also that "those in higher status positions also use ‘the’ more," perceived by some as "a signal of their prestige and (self) importance," as in "the prime minister" or "the president." The same is asserted regarding the use of "the" to convey the importance of a thing such as "the migration problem." Thus, a potential that articles convey emphasis in some instances and distinction in others. 

The real point, of course, is that our speaking and writing are challenges that we face. Our language use, consistency, and tendencies may stem from our native language, our education, and more. We are different. That does not mean we are right or wrong (despite what my grade-school teacher insisted with her red pen), merely different. There is strength gleaned from our struggle to master language, but also in our acceptance of the use others make of it. That one does or does not use prepositions or articles as you would is not a reflection on them as Lionel Twain intimates in the movie. 

Judgment based on word and language choice is not helpful. Instead of becoming distracted by some missing article, let us strive to focus on the merit of the idea expressed. Perhaps the point is in the details of what is said more than in the articles, prepositions, and verbs. If we allow ourselves to be distracted by the missing article or word choice, perhaps we could miss the point?

We Don't Need You

The ABA Journal recently published Judge tells lawyer . . . the profession doesn’t need him. This is an intriguing tale worthy of attention from a variety of perspectives. The story involves an attorney with an antagonistic attitude and a proclivity for coarse language. The attorney sent emails to opposing counsel that were unprofessional and insulting. So insulting, even the full title of the ABA article is truncated here. I am appalled by the selection of language and the lack of professionalism exhibited. The attorney is fortunate that the trial judge there concluded the incendiary behavior was not the client's but only the attorney's. 

I have known lawyers who became incendiary, caustic, and rude. Litigation can be fraught with delay, denial, and deflection seemingly at every turn. The disappointment and frustration of the parties can wear on an attorney. Through the course of litigation and negotiations, lawyers absorb and suffer from a great deal of other people's stress. That can affect us emotionally and even physically. We have to find ways to deal with our stress. 

The ABA story involves litigation. The plaintiffs were represented by Mr. Christopher Hook, who apparently practices in Culver City, California, steps from Venice Beach, Marina Del Rey, and the Santa Monica Pier. If you have not visited the area, I recommend it. The plaintiffs are said to have suffered "a water loss that forced them from their home." One of the lawyers in the case contended that it was "a $200,000 dispute." It is not uncommon for attorneys to view cases from different perspectives, or to value them disparately. 

Despite that particular estimate or contention, it is alleged that Mr. Hook submitted a "$125 million settlement demand" to the property insurer. When that apparently did not elicit the response that he desired, his demand apparently escalated to "302 million." It is perhaps fair to say that negotiations were less than cordial, at least periodically; some might use other adjectives. Mr. Hooks' emails as quoted in the press are so inappropriate, in the famous words of Doug Neidermeyer, "decorum prohibits listing them here." But, it is fair to say that there appears to have been frustration and stress. 

The story has made headlines. You could read of it in The Washington Post, the LA Times, and of course the ABA Journal. It reminded me that Phineas T. Barnum is credited with saying "There is no such thing as bad publicity," but perhaps there are limits to that maxim? There are plenty of opportunities above for the reader to depart these tranquil pages and immerse themselves instead in the alleged vulgarities, insults, threats, and disrespect. Mr. Hook may revel in that publicity. 

But, his clients reportedly found themselves in court in December to answer a show cause order. Such orders are really only questions posed in the judicial capacity. Many attorneys take such orders as per se accusatory, or even threatening. While it is entirely possible for one to be so, it is also possible for such an order to simply be the equivalent of the old conversation point "correct me if I'm wrong." It is a method for a judge to impart what she/he perceives and allow the parties to a case to provide contrary evidence or repudiation explanation. Show cause orders are expeditious paths forward in litigation. 

These clients, it appears, faced dismissal of their lawsuit against the property insurance company. The language and behavior of counsel was so marked that a judge was considering the ultimate sanction of dismissal. That potential dismissal was foregone only after the clients explained to the judge "that they had no idea that Hook was sending emails" of this demeanor, tenor, and tone. Consider that for a moment. A party's chance to have a day in court, to confront the other side, to put on its evidence, to have its say, could be foreclosed as a sanction in response to bad behavior, low-class language, insults, and threats. 

In most instances, the Supreme Court of a state has responsibility for the licensing and discipline of lawyers and constitutional judges. The responsibility for administrative judges may be in the executive branch, but that may not preclude a Court from sharing its perceptions, see Deeply Concerned (November 2019). As the licensing authority, those courts have an obligation to the public and the profession to require both compliance with ethical rules and the aspirations of professionalism. 

In general, there is some perception that the Florida Supreme Court has become increasingly focused on both the conduct of attorneys and the deeper need for professionalism. The establishment of the Henry Latimer Center for Professionalism is part of that effort. Also notable, the Court has recently rejected various discipline recommendations regarding attorneys, and delivering more stringent punishment. Some may recall a 2019 case in which a recommended three-year suspension was rejected by the Court, and the attorney was instead disbarred. See Aggressive without Being Obnoxious (August 2019).

Well, in California, it is possible that the alleged author of these hateful emails may have just such an opportunity to address the allegations. The Judge before whom Mr. Hooks was appearing, in that case, was seemingly immune from various arguments and excuses regarding the word choices. Judge Wright was dismissive of Mr. Hook's contention that his comments were protected by the First Amendment. Reportedly, Judge Wright "slammed his hands on the bench" during this hearing "and said he had never seen such behavior."

Judge Wright also noted the contention that Mr. Hooks had apologized for his behavior. At one point, the judge apparently pointedly asked to be directed to when an apology had been made, as he had "asserted in court papers." When making an allegation, it is advisable that an attorney be able to point to the record in support. 

Judge Wright was also apparently as unpersuaded by Mr. Hooks' assertion that the emails could not be held against him because they were "unauthenticated." The Judge reportedly took issue with Mr. Hooks' arguments and legal ability, at one point questioning "You did go to law school, right?” The Judge was nonplussed and even dismissive. At one point, allegedly, telling Mr. Hooks simply to "Shut up." Judge Wright suggested that Mr. Hooks should not be an attorney.

Whether these various emails were sent, and whether they say what is alleged, are matters of fact. But, if they were, the content is scurrilous. inflammatory, and unprofessional. That we all say things we do not mean or wish we could unsay, is a fact. Generally speaking, when we do so, a sincere apology and an acknowledgment of responsibility are the best course.

If an ethical complaint is brought against Mr. Hooks, it will be considered in a unique Bar Court, as discussed in Don't Double Down Dummy. The Court will make its findings and then perhaps make a recommendation to the California Supreme Court regarding Mr. Hooks. It is important to remember that his defenses may be authentic. It is possible Mr. Hooks did not say those things. It is also possible that he did and now understands that they were inappropriate, hurtful, and wrong. Emotions may be governing intellect as this saga continues. 

I have perceived over my few years in this profession that the Courts seem to value contrition, the taking of responsibility, and the earnest focus on improved behavior. That said, this profession has much to protect. Its members are responsible for preserving the rights of clients, in some instances their very lives and livelihoods. The conflicts are real. They are stressful. They are frustrating. And, we are all imperfect. But, we have to maintain decorum and strive for professionalism. We cannot resort to hate and vitriol, even when our anger, frustration, and despair are overwhelming. 

The Judge allegedly said to Mr. Hooks "This profession doesn't need you." If the allegations are proven, perhaps Judge Wright is correct. Perhaps the California court will conclude that civility, demeanor, and decorum are both preferred and required. Time will tell. Next time your frustrations take you to poor word choice or anger, acknowledge the error, own it, apologize, and regroup. A stonewall defense such as denial and deflection is likely to lead only to more frustration, stress, and pressure.

Recognizing Service - Broward

Today is a proud and momentous day in Broward County. 

It has been several years ago that the Workers' Compensation Institute founded the Florida Workers' Compensation Hall of Fame. That has been outlined and discussed in Florida Hall of Fame (August 2019), and A Reminiscence and a Challenge (February 2016). Suffice it to say that our Florida workers' compensation community is replete with so many long-serving and dedicated professionals. We are indeed fortunate for their presence and contribution. Since that Florida effort began in 2012, other states have worked toward such recognition. Kentucky leaps to mind. 

This week, however, a local Florida bar association enters the recognition process. The Broward Bar Association tomorrow will "commemorate some of the greatest contributors to our organization and the practice of Workers Compensation in our state," according to Diana Castrillon, a member of that organization's board. It will present the inaugural "Broward County Bar Association’s Hall of Fame Award." This is a recognition of contribution to the community and the practice of workers' compensation. 

Ms. Castrillon noted that the recipient is "one of the founding members of the Broward Bar’s Workers Compensation Section," as well as one of its original board members. This legend of workers' compensation is moving into retirement and is remembered in the community for his efforts contributing to the annual Broward Section educational conferences, establishing and fostering primacy of professionalism in that community, and focusing the practitioners on the community and contributory aspects of this profession. 

Ms. Castillon says that his efforts are recognized as promoting education, and the discussion of "professionalism and ethics" to create "a stronger, better Bar." She credits this honoree's efforts with building a sound foundation of the Broward Section; "the group that we are today started with his hard work as well as that of other key members of our local community of practitioners." In addition, she noted he is "a consummate professional," known for his attitude of "utmost respect" with all the members of the Broward Bar workers' compensation community. 

Thus, on February 27, 2020, the Broward Bar Workers' Compensation Section will honor Mal Steinberg as the inaugural Hall of Fame inductee. It has been my pleasure to know Mr. Steinberg for about twenty years. I have had numerous opportunities to interact with him both in conjunction with the Broward Bar activities and elsewhere. It is my pleasure, upon his retirement from practice, to congratulate him on this honor. 

Mr.. Steinberg was most recently "the senior partner in the Law Offices of Steinberg & Brown in Fort Lauderdale." He is what we colloquially refer to as a "double gator," having earned both his Bachelor of Science in Psychology and his Juris Doctor from the University of Florida. He has been practicing law in Florida since 1973 and is approaching the fifty-year mark as he retires. For 46 years he has specialized and focused on "primarily representing the interests of employer/carriers throughout the state." 

In addition to his service on the Board of Directors for the Workers' Compensation Section of the Broward County Bar, he has served the American Arbitration Association, the Academy of Florida Trial Lawyers, and the Friends of 440 Scholarship Fund, Inc. His service to the Friends of 440 has been notably long and outstanding. He is the recipient of numerous recognitions including the Friends of 440 Outstanding Achievement Award (2006) and the Friends of 440 Richard Sadow Award in 2012 (as depicted in the picture at the end of this post, courtesy of the Friends of 440, and presented by Cory Schnepper). 

Mr. Steinberg has lectured before the Workers' Compensation Claims Professional Association (WCCP), the Florida Bar Workers' Compensation Section Winter Meeting and Seminar (multiple times). the Broward County Bar Workers' Compensation Section Seminar (multiple times), and more. His dedication to the education and development of the Bar and its members is well-known and praiseworthy. He has also been a long-serving member of the 17th Judicial Circuit Grievance Committee for the Florida Bar. 

I am proud of the achievements and contributions Mr. Steinberg has made to his local community and the Florida workers' compensation community. I am as proud of the Broward County Bar Association Workers' Compensation Section for pausing to recognize his achievements and contributions. Its action marks a recognition of Mr. Steinberg certainly. But, as important, its chosen vehicle of a Hall of Fame recognizes that there are many in that community that are worthy of recognition. This presentation is a present action that foretells future recognition of others. 

I am pleased and grateful for the Bar's decision to institute this process. I am honored to be able to write about this inaugural induction and recognition. I only wish I were in the audience today. It is my fervent hope that the action today is a harbinger of many recognitions to come in the future. I hope you will join me in congratulating both the Bar and Mr. Steinberg.

Chatbots and Friends

The British Broadcasting Corporation recently ran A chatbot pulled me out of a 'really dark place'. It struck me for two reasons: the invasion of technology continues, and the time we spend on our screens is intriguing. 

The story focuses on a cancer survivor who experienced emotional issues following her diagnosis and the death of "her best friend." She complained of diminished motivation, and chose to turn to an online "mental health chatbot, called Vivibot." This is an application offered by a "social community for people affected by cancer," and is one of many chatbots said to be offered for mental health. 

While this cancer survivor lauded the bot, even those who design them admit that such applications "cannot treat clinical depression or clinical anxiety." They stress that these are not a replacement for "human interaction of any sort." The story quotes others who are critical of the bots. One says "They make you believe that, if you just look on your phone and do a couple of self-help kind of things, that's going to take the place of the healing nature of a healthy relationship." 

One of the criticisms in this respect is the lack of "non-verbal communication" that is employed when people interact in person. There is a perception that the "non-verbal" element is important in our interactions and perceptions. Despite this, the technology is said to be increasingly popular. Certainly, this may be driven in part by generational acceptance of technology. But, some even cite "research (that) suggests that people are more honest with robots than with fellow humans. That seems supportive of an acceptance that is beyond generational. 

The technological evolution is expected to continue, and some project that "artificial intelligence (AI) might be advanced enough to have a deep understanding of human mental health." Some predict "human-level AI in 2029," though it is only getting started in medicine. There is a perception that AI is coming to medicine, is suited to medicine, and is an inevitability. The real question seems to be whether we will relate to the technology and find solace in it for mental health issues. Thus, the implication is not whether it comes, but instead will it replace or enhance human therapists? 

About the same time as that story, various news sources broke word of proposed legislation against technology: Vermont bill would ban cellphone use by anyone younger than 21. The sponsor of this legislation concedes that it will not become law. In fact, he was quoted saying "I wouldn't probably vote for it myself." But, he seems to espouse a belief that we are too focused as a society on these screens and apps. Certainly, while driving that has been deemed to be a sufficient problem to drive legislation. 

There are critics of the Vermont proposal, cited by news organizations such as CNN. Some note the parallelism in the proposed bill and other bills that seek to limit access to weapons. The sponsor seemingly admits that his bill is intended to highlight conversations and legislation about gun possession by those under 21. However, there may be arguments against children having cellular phones. The Very Well Family site concludes that this is appropriately a parenting decision, rather than a legislative one. 

There are a variety of complaints about screen time generally. Rally Health summarizes the connections between screen time and various health conditions. The concerns included the promotion of a sedentary lifestyle, and the body's production of dopamine and melatonin. In short, there are reasons perhaps for concern. If these concerns prove valid, there may be room for discussion as to whether we are sufficiently benefited by health apps to justify the screen time that we would amass in using them. 

In the end, the evidence seems to suggest that we thrive on personal interaction. As technology permeates our society, technology encourages our isolation. We order goods instead of shopping. We appear for hearings or mediations by telephone. We send an ultimatum warning by email or text instead of discussing (interactive conversation, to "consult") a motion. And now, when we find that isolation troubling, a segment of our population does not turn outward to social settings, but instead to still more technology in the form of interactive bots. 

Timothy Leary encouraged us in the 1960s to "turn on, tune in, drop out." Perhaps in that age, this was sound advice. But the converse seems a better adage for today. It seems we would all benefit if we could instead "turn off, tune out, and drop in." There is value in human interaction. We should strive to find it, to engage our professional peers and friends in an interactive and personal manner. Our technology-enabled isolation is not healthy and the solution is not more screen time. 

The cure for isolation is engagement and interaction. We have to work to re-establish it. We must all remember that the "a" in AI is "artificial." While apps may help us, I suggest actually being with people, and interacting with people, will help us all more.

Arbitration News in Workers' Compensation

Most practitioners are surprised to learn that Chapter 440 (the Florida workers' compensation law) includes an arbitration provision, section 440.1926. This provides that 

"the employer, carrier, and employee may mutually agree to seek consent from a judge of compensation claims to enter into binding claim arbitration in lieu of any other remedy." 

That is, the parties could stipulate to have their dispute decided by someone other than the Judge of Compensation Claims. Of course, that would require the assigned JCC's consent. It is another instance in which the Legislature has recognized that JCCs are not a "court," specifically providing for an interpretation in which JCCs are equated with a "court" in this specific instance. Chapter 682 governs the arbitrations, and as used therein "the term 'court' shall mean a judge of compensation claims." 

The subject of arbitration recently came to the fore with a decision from The Florida Fifth District Court of Appeal in Hobby Lobby Stores, Inc. v. Cole, Case No. 5D18-3809 (January 3, 2020). This is similarly a workers' compensation statutory issue that was not heard before a Judge of Compensation Claims. There is a provision in the workers' compensation law intended as a protection for injured workers, section 440.205. It is short and succinct: 

"No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law." 

Because the statute does not specify that such claims would be heard by judges of compensation claims, the Florida Supreme Court concluded years ago that such issues are within the jurisdiction of Florida's court of general jurisdiction, the Circuit Courts. See Smith v. Piezo Technology, 427 So. 2d 182 (Fla 1983). Thus, Mr. Cole's claim for "wrongful discharge" proceeded there, and was appealed to the Fifth District. 

Hobby Lobby responded to the civil complaint by filing a "motion to compel arbitration." The employer had hired Mr. Cole in 2015. Also in 2015, Mr. Cole and the employer signed "a two-page, single-spaced document" which "conditioned Mr. Cole’s employment on his acceptance of its terms." He contended that thereafter he was the target of "antagonistic conduct, culminating in his discharge." This agreement stated 

"that any employment-related dispute Mr. Cole had with Hobby Lobby, including '[d]isputes involving interference and/or retaliation relating to workers’ compensation,' would be submitted to and settled by final and binding arbitration." 

The agreement required the Employer to pay all arbitration costs, and allowed Mr. Cole to "select from two sets of arbitration rules." 

Finding this short agreement "unconscionable," the trial court denied the Employer's motion to compel arbitration. Relying upon an affidavit from Mr. Cole, the trial court concluded that Mr. Cole did not understand the contract, had no knowledge of "what an arbitrator or an arbitration was," nor understanding that he was "waiving his right to a jury trial." He also complained that he was not told he could consult with an attorney regarding the agreement. Finally, he concluded that "he believed he had no choice but to sign the agreement to get and keep his job." 

The Fifth District reminded of a three-part analysis for the application of a mandatory arbitration agreement: 

“(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” 

It concluded that there was "no dispute that Hobby Lobby met all three prongs of this test." The Court next examined the conclusion of "general contract defenses, including unconscionability." 

The Court described "a court must conclude (such a contract) is both procedurally and substantively unconscionable." It reminded that "the party seeking to avoid arbitration bears the burden to establish unconscionability"; that is, Mr. Cole had to prove it was applicable. 

The Fifth District noted that the "trial court relied on California law. In California, “[a]n arbitration agreement that is an essential part of a ‘take it or leave it’ employment condition, without more, is procedurally unconscionable." But, Florida has not adopted that view of unconscionability. While the "take it or leave it" nature may be relevant, it is not dispositive of the question here. The Court explained that Florida employs various factors worthy of consideration: 

“(1) the manner in which the contract was entered into; (2) the relative bargaining power of the parties and whether the complaining party had a meaningful choice at the time the contract was entered into; (3) whether the terms were merely presented on a ‘take-it-or-leave-it’ basis; and (4) the complaining party’s ability and opportunity to understand the disputed terms of the contract.” 

The Court noted that Mr. Cole had not demonstrated an inability to read the agreement or that he was "pressured, rushed, or coerced . . . into signing it." Furthermore, "He makes no allegation that he lacked a full and fair opportunity to inquire into the Agreement’s terms or to enlist help if confused." Therefore, the Court concluded that "the trial court erred in finding the Agreement procedurally unconscionable." 

As to substantive unconscionability, the Court noted that the trial court relied upon 4 points in concluding that the contract was "so unreasonable and unfair" that it should not be enforced: 

"(1) the Agreement required Mr. Cole to forfeit his right to a jury trial; (2) the Agreement truncated the statute of limitations for tort claims to one year; (3) the Agreement did not define which arbitration rules apply; and (4) the Agreement required Mr. Cole to pay Hobby Lobby’s attorneys’ fees if he contested the Agreement in court." 

The Court found no merit in any of these four, concluding that (1) "all arbitration agreements waive the parties’ right to a jury trial," and "the Agreement’s plain language contravenes the remaining findings." The Court concluded that "ultimately, there is no basis to conclude the Agreement is substantively unconscionable."

The takeaways from this Court's explanation are noteworthy. First, trial judges should look to Florida law when determining issues. Reliance on the law of another state should never be the first resort in such analysis. Second, arbitration clauses are enforced by the Courts of Florida. That may mean that employers are encouraged to utilize them in hopes of evading court litigation. Third, it might be that some will seek to include workers' compensation determinations in such agreements. The sole obstacle then might be the required JCC approval post-accident. Finally, anyone entering a contract is well advised to take the time to read and understand what is being agreed. Before signing, it may behoove one to ask an attorney questions about precisely what is intended and meant. 

It may very well be that signing some agreement may be the only choice offered in any exchange. But, even in that context one still has the choice to decline such a contract and seek an alternative elsewhere (there are many places to work). At a minimum, one might seek alternate language in that contract/agreement. In the end, one might still elect to sign such an agreement. But, the decision to do so should be with an understanding of its implications and knowledge of its terms. We alone decide what we sign. We owe it to ourselves to read, understand, and question before we do.

HB 1147 and the Electronic Medical Record

House Bill (HB) 1147 was filed on January 7, 2020, by Representative Payne. A similar Senate Bill (SB) 1882 was filed on January 13, 2020, by Senator Lee. Those who are familiar with the Florida Legislative process will know that a new law usually requires two bills, one in each chamber. They are each generally referred to committees for consideration. That process is a great feature of the Florida process because anyone can appear at a committee meeting to hear the discussion, and everyday people may sign up to comment on a bill at those meetings. 

HB 1147 would add paragraph (3) to section 394.4615, Fla. Stat. This would afford a "service provider" fourteen working days to "furnish clinical records in its possession" following a request. And, the provider would be required to provide them "in paper form or, upon request, in an electronic format." Those providers that maintain and "an electronic health record system" are required to provide the "records in the manner chosen by the requester," and the options "must include electronic format, access through a web-based patient portal, or submission through a patient's electronic personal health record." Thus, the provider that elects to maintain records electronically may be compelled to produce them electronically. Photocopies can create costs, remember What is a Photocopy Machine? back in 2014? (May 2014).

The change may be significant, because section 395.3025(1), Florida Statutes, already provides that charges for "nonpaper records . . . are subject to a charge not to exceed $2." That same section limits the charge for paper records to $1 per page. Thus, a 100-page composite of records kept in paper form could potentially result in a charge of $100.00 compared to the $2.00 charge for an electronic copy (plus a search fee of up to "$1 may be charged for each year of records requested").

HB 1147 would also add new subsections to section 397.501(7), Fla. Stat. This would afford a similar fourteen working day period within which a provider of substance abuse services would have to provide a copy of records. It institutes a similar constraint on those who "maintain an electronic health record," and mandates that such a provider must afford options to the requester as described in section 394.4615. Paragraph (7) would also have a subparagraph requiring such providers to afford record access (for examination) to both requester and "legal representatives." The deadline for providing that access is only 10 working days. 

For nursing homes, HB 1147 would amend section 400.145 to require that facilities provide a response to a written request from a resident "within 24 hours, excluding weekends and holidays." The actual copies of those care records would have to be provided "within 2 working days." 

The bill would create section 408.833, Fla. Stat. This chapter of Florida Statutes is focused on hospitals, hospices, and other care facilities. This would echo the provisions above regarding the fourteen working day parameter and the constraints requiring that a requester be given the electronic option if the provider maintains an "electronic health record system." There are also changes in the bill where statutes currently require record production "in a timely manner," to the fourteen working day requirement (section 456.057). 

There are some reference corrections also in the bill. These are instances in which a law makes reference to another section of the Florida Statutes. As the law evolves and amendments are passed, those referential paragraph numbers and letters can change. Various such references to other statutes are accordingly amended by this legislation. 

The overall impact of these changes would seemingly be more rapid access to medical records. The potential for eliminating or perhaps minimizing the use of paper (and the costs and effects of shipping it) is also noteworthy. The limitation of copy costs may have a significant effect on the workers' compensation system, in direct expenditures. And, finally, those who request records and wish to store them digitally will perhaps no longer be faced with the scanning of records produced in paper form. 

Since its introduction, HB 1147 has moved expeditiously through the hearing process. It was reported favorably by the Health Quality Subcommittee on January 20, 2020, by the Health Care Appropriations Subcommittee on January 28, 2020, and by the Health and Human Services Committee on February 12, 2020. It was placed on the House of Representatives "second reading" calendar that same day and is awaiting further action on the House floor. 

Senate Bill 1882 has not yet been heard by a committee. Upon filing, the bill was referred to the Health Policy Committee and the Judiciary Committee, and the Rules Committee.

Update 02282020: The following counter point was provided by email and is reprinted here with permission:

 

We recently read your opinion on medical record fee legislation in Florida, House Bill 1147 here. 

Ciox Health is a medical record reproduction company that works on behalf of medical providers as a HIPAA business associate and fulfills record requests by entities like health insurers, medical providers, auditors, liability insurers, attorneys, and patients, to name a few. I have represented Ciox Health, formerly known as HealthPort Technologies, since 2012. Ciox is charged with protecting patient privacy under a myriad of state and federal privacy laws while responding to requests for production of records. In order to adequately protect patient privacy and comply with a legal and valid request for records, Ciox must review every page of the record screening out any information that was not authorized to be released by the patient, or that is protected by various privacy laws. Reproducing a medical record is not as easy as pushing a button or copying a file. There is real privacy work being done when a request for records is made. This privacy work is performed by specially trained individuals who undergo regular training and receive periodic updates on everchanging laws, and many times then reviewed by the physician and their attorney. The longstanding business model for this industry has been to charge the requestor for the production of the record. To make the health care providers bear this financial burden would merely increase the cost of healthcare as medical providers primary source of revenue is obtained from providing medical services. 

Implementing exorbitantly low fees in law for the reproduction of medical records is devaluing patient privacy and shifting any financial burden back to the patient themselves through the increased cost of healthcare. Please also keep in mind this is not an issue of patient access to medical records. Patients already have a guaranteed right of access to their medical record afforded them under HIPAA. HIPAA even prescribes the fees a medical provider or their business associate may charge a patient for requesting their own record and it should be no surprise the fee is limited to the actual labor involved in copying the record plus any material costs. That is because the patient is entitled to their record without the privacy protections. However, when a patient authorizes an attorney, insurance company, or other third party to obtain a copy of their medical record they do so with certain limitations only permitting the third party to obtain the records typically necessary and related to their relationship and while upholding the aforementioned state and federal privacy laws. 

The Board of Medicine spent several years and over 38 public hearings on the adoption of a rule revision for the cost of records. The rule was challenged all the way to the Supreme Court and we participated in the proceedings all the way through the challenges. One item discussed what your reference to electronic, paper, and non-paper records. The rule is very clear that paper and electronic copies of those paper records are the same fee. Non-paper records are historically defined in rule as microfiche and x-rays. Your reference to a $2 charge is for microfiche and x-rays, not the electronic version of a paper record. It is important to note the difference and not confuse the two. There was much discussion on that point during rule adoption that I am sure was not shared with you.

 

In summary, medical providers and their business associates are the gatekeepers protecting patient privacy and protecting patient privacy is not free or cheap. When a third party who is going to use the record for financial gain requests the record and thereby risks a breach of patient privacy, it is only fair that the third party compensate the provider or business associate for the labor, resources, and materials involved in protecting the patient's privacy before disclosure.