Fl. State Sen. Paula Dockery Drafts Legislation to Exempt Agency Minor Dependents from Public Records Requests

The recent public records request made of all 67 school districts by a Polk County man, Joel E Chandler, has revealed several problems with the Florida open records law.

One large problem, of course, is how Florida Law seems to contradict Federal Law (HIPAA) with respect to the release of certain personal information about health plan participants--particularly in districts like Escambia County that self -insure. This issue will likely be settled in court and the outcome could be precedent setting. This one aspect, in and of itself is newsworthy--- however, the other major problem that this particular public records request has revealed is the vulnerability of information on minor dependents who are not employees of a State Agency.

The privacy of information about minor dependents of State Agency employees needs to be exempted from public records requests, in my opinion. Anyone off the street should not be able to walk into a school district and request the addresses, telephone numbers, ages, and names of the dependent children of employees. This is potentially dangerous for many reasons, and this obvious problem needs to be corrected.

I am extremely happy to know that Senator Paula Dockery of Florida Senate District 15 is tackling this problem head-on, and has drafted a bill to address this issue. I'm told that Senator Dockery will be submitting this bill for consideration during the upcoming legislative session. Sen. Dockery's office forwarded the draft, and I have posted it at the following address.

http://www.scribd.com/doc/8288222/Draft-Bill

I cannot imagine any lawmaker opposing this bill, and I certainly hope that it will sail through the house and senate to become law. I intend to email our local elected delegation to urge their support for this bill as well.

Grim Budget News from The Revenue Estimating Conference

I received the below email late yesterday afternoon from the Florida School Boards Association Director of Legislative Relations, Ruth Melton. As expected, K-12 Education funding may be cut again for this fiscal year and again next fiscal year. Mrs. Meltons Email:




Ladies and Gentlemen:


TODAY’S REVENUE ESTIMATING CONFERENCE
When the Legislature crafted the $66 billion budget for this year (FY 2008-2009), they expected that the state would receive about $40 billion in federal and local revenue and that the state would earn the remaining $25 billion from general revenue. In August, the Revenue Estimating Conference announced a general revenue shortfall of about $1.7 billion. At that time, state agencies were subjected to a 4% holdback of funds (2% for school districts) -- which covered about $1 billion of the revenue shortfall – and Governor Crist exercised the authority granted to him by the legislature to cover most of the remaining shortfall from state reserves. This move avoided the need to call a special session prior to the November elections.

In recent weeks, preliminary forecasts indicated that an additional shortfall was looming. State agencies were advised to develop a budget that reflected a 10% reduction in funding. True to expectation, today the Revenue Estimating Conference projected that there will be an additional general revenue shortfall of $1.5 billion in addition to the $1.7 billion shortfall in August (for a total of $3.2 billion LESS than expected to support the 2008-2009 budget). Although Governor Crist still has the authority to use state reserves to help offset this shortfall, sufficient funds are not available -- the funds in the Lawton Chiles Endowment Fund (Tobacco Settlement Trust Fund) are invested and, therefore, have been diminished by the current market conditions. This fact makes it very difficult, if not impossible, to avoid a Special Session of the Legislature. It is unlikely that such a session will be called before January 2009. At that time, if there is no new influx of revenue, it is expected that K-12 education will be cut by AT LEAST $500 million -- and this does NOT include reductions that may occur in local funding due to reduced property tax revenue. In general, school districts are advised to brace for an ADDITIONAL 2-3% budget cut for THIS fiscal year.

Although legislators are still shy of discussing the possibility of establishing any new revenue sources to offset these shortfall, it is worth noting that Senate President Jeff Atwater and House Speaker Ray Sansom have jointly announced that the 2009-2010 budget will not include any of the popular "member projects" that usually grease the appropriations process.

As of this writing, the official report of the Revenue Estimating Conference has not been published and it is difficult to report what the Conference has projected for next year’s budget. We will provide you with that information, and any other details, as soon as it is available.


I regret that I am unable to report better news. Please let me know if you have any questions.

Ruth

Ruth Haseman Melton
Director of Legislative Relations
Florida School Boards Association

Official Response to Joel E. Chandler Public Records Request

The Escambia County School District has officially responded to the huge public records request made of our district. A Polk County Man, Joel E Chandler, is requesting The public records regarding the health insurance policy of the Escambia County School District and the name, addresses, gender, age, title, and telephone number of all employees and dependents covered by the policy. I have issues with this request which I have discussed at length in previous entries to this blog. The main issue I have, aside from the potential HIPAA violation (s) that would result from release of this information, is that Joel E Chandler wants the name and addresses of dependents, which will include my three children. What will he do with this information? Who is this Joel Chandler?

I've been forwarded a court document I'm told is attributible to Mr. Chandler, which I have posted:

http://publicrecord.hillsclerk.com/oridev/criminal_pack.doc?pcSearchMode=NS&pnPidm=77223&pcCaseId=90-CM-023707&pnCnt=1&pcCourtType=CM

I'm not trying to demonize this individual, but I believe this issue raises valid points that need to be addressed by our legislators in Tallahassee. Should anyone off the street be able to waltz into a local school district and request detailed information on minor dependents? What about conflicting State vs Federal law--The informal AGO opinion did not address applicability of HIPAA to self insuring districts like Escambia.

The information on our dependent children needs to be private and off limits to public records requests, in my opinion.

Many districts are complying with this request, no questions asked. See the following articles from Gainseville and Alachua:

http://www.gainesville.com/article/20081114/news/811141001

http://www.ocala.com/article/20081114/ARTICLES/811140990?Title=Records_request_raises_questions

Our attorney has wisely pointed out that there may be potential Federal laws which could prevent Escambia County from providing this information. The district's response, crafted by Donna Sessions Waters, is here:

http://www.scribd.com/doc/8180747/Esc-County-Resp-Chandler1113081

Big city papers from around the state are abuzz with this story. Pensacola media?---silent on this story.

Minutes of Board Meeting(s) 11-18-08

I am posting these minutes to expedite information dissemination. Much more complete and detailed minutes will be posted in 4-6 weeks on the school district’s website. In the mean time, these minutes are what I feel were the big “takeaways”, a macro look at my impression of the meeting. These are condensed, abbreviated, shortened, and to the point.

Two meetings were held-the first was a special installation meeting for the newly elected Board Members and the newly elected Superintendent. This meeting began at 6:05.

Linda Moultrie installed as Board Member for district 3.

Bill Slayton installed as Board Member for district 5.

Patty Hightower installed as Board Member for district 4.

Malcolm Thomas installed as Superintendent of Schools for Escambia County.

After the installation ceremony, the organizational meeting took place.

Patty Hightower voted Chair for the third straight year (nominated by Bill Slayton.)

Gerald Boone was voted Vice-chair (nominated by Patty Hightower.)

Regular meeting times were set and regular workshop times were set, no changes to current schedule.

Organizational/Installation meeting adjourned at 6:42 for a reception sponsored by the Escambia Education Association.

7:05 regular meeting begins

All Board Members present.

Public Forum: No Speakers



State Winners from Future Farmers of America (FFA) convention, Lynsey Meharg and Austin Courson recognized for their achievements.

PTA Presentation—given by Cindy Gerhardt

Stellar District Employee Recognition goes to Warehouse Employee Brian Tracy.
Board adopted the resolution recognizing “Education Staff Professionals” ESPs




Rule adoptions:

Revisions to School District Rule 6Gx17-7.09 Student Progression Plan (semester credit) approved 5-0

Permission to advertise rules for adoption:

1. Revisions to School District Chapter 5- Business Services, approved for advertisement 5-0
2. Revisions to School District Rule 6Gx 17-7.09-Student Progression Plan
approved for advertisement 5-0

2 sets of minutes from October Board meetings approved

Entire Consent Agenda Approved.

All Curriculum items approved
All Finance items approved
All Purchasing items approved

All Operations items approved

(Entire Consent Agenda was thoroughly covered and discussed at length during a meticulous, deliberative 4.5 hour board workshop held during the morning of 11/14/2008)

Board voted to accept the superintendent’s recommendation regarding the following:

3 Employees Terminated
1 Employee re-assigned with pay
Note: One Speaker (Daisy Proctor) addressed the board on behalf of one of the employees recommended for termination by the Superintendent. Mrs. Proctor asked the board for compassion and a second chance for the employee in question. Board listened to Mrs. Proctor and then voted 5-0 to accept the superintendent's recommendation for termination.

14 Student recommendations submitted by the Superintendent and accepted by board.

11 Expulsions
2 Suspensions
1 recommended hearing order adoption

Meeting adjourned at 8:08.

Potential Response to Pubic Records Request from Joel Chandler of Polk County

An excellent response to the recent public records request from Mr. Joel Chandler of Polk County is in the works. I'm told that the response may be sent out as early as Monday. Mr Chandler, fresh off of his circuit court victory in his public records request in Polk County, has requested of the Escambia County School District the following:

The public records regarding the health insurance policy of the Escambia County School District and the name, addresses, gender, age, title, and telephone number of employees and dependents covered by the policy.

Many within the district are apprehensive about providing this requested information to this individual, Joel Chandler. I share this concern. Our Board attorney will be sending the district response once it has been approved by the Superintendent, which should delay the dissemination of the information for at least a few weeks. Our draft response will request of Mr. Chandler a deposit of several thousand dollars prior to the district staff beginning the process of going through all of the records to separate those that are exempted from those that are not.
It is my understanding that this records separation process will be an extremely tedious, labor intensive effort.


Hopefully, our local media will pick up on this story, because it is important and relevant. Also, I hope that the media will look into the background of the individual who is making the request for detailed information from our district employees and their dependents.

I have been forwarded a public record that exists on this individual. This public record is available on the Hillsborough County clerk of the courts website, and a detailed analysis of this individual's record ought to be undertaken, in my opinion, prior to the release of any sensitive information to this person regarding names, ages, addresses, telephone numbers, etc. A link to Mr. Chandler's Public Record is here:

http://publicrecord.hillsclerk.com/oridev/criminal_pack.doc?pcSearchMode=NS&pnPidm=77223&pcCaseId=90-CM-023707&pnCnt=1&pcCourtType=CM

The thing about public records is that they cut both directions; If you want information from us, we are entitled to look up information about you.

But I want even more information on THIS person before ANY information is sent to him from us regarding Escambia County School District Employees and their Dependents.

Huge Public Records Request Made of The Escambia County School District

For background see:

http://jeffbergoshblog.blogspot.com/2008/11/public-records-law-vs-employee-right-to.html

Since this initial blog post, the plaintiff in the Polk County public records request detailed in the above link, Joel Chandler, has made the identical request of information from the Escambia County School Board, i.e. the Disclosure of public records regarding the health insurance policy of the Escambia County School District and the name, addresses, gender, age, title, and telephone number of employees and dependents covered by the policy.

This is a lot of personal information--and people (specifically employees and their dependents) should be aware that there is a possibility that this information may be
released.

To bolster Mr. Chandler’s case, the Assistant Attorney General of Florida has issued an informal opinion on the matter in favor/support of the plaintiff’s position.

My issue with this records request is that to release such information would seem to be a violation of Federal Law; specifically the Protected Health Information (PHI) outlined in detail in the 1996 Health Insurance Portability and Accountability Act (HIPAA). See Privacy provisions of HIPAA here.

http://www.dhhs.gov/ocr/privacysummary.pdf

I do believe that Federal Law would trump state law if HIPAA is applicable and also if The Escambia County School District meets the definition (as a self insuring institution) of a health care provider under HIPAA. Is the ECSD a health care provider? I've asked the question but have not received an answer as of yet. The issue is being worked.

The previously mentioned AGO from the Assistant Attorney General specifically does not address the applicability of HIPAA to the Chandler issue, which is, in my opinion, weak. The applicability/non-applicability of HIPAA in this case IS the crux of the issue. Sidestepping this vital component is a dodge, a punt. My sense (and hope) is that this request will be held up until a thorough review and analysis can be done to ensure that if the (Escambia County) district were to release this information we would not be in violation of Federal Law. (See the complete AGO on this matter below)


Number: INFORMALDate: November 10, 2008
Subject: Records identifying participants in health insur. plan
The Honorable Paula Dockery
Senator, District 15
Post Office Box 2395Lakeland, Florida 33806-2395

Dear Senator Dockery:

You have asked whether sections 112.08(7) and 119.071(4)(b), Florida Statutes, preclude the release of information that identifies school district employees, their dependents, and their health insurance plans. The issue arises in light of a recent circuit court order requiring the Polk County School District to disclose public records regarding the health insurance policy of the Polk County School District and the name, addresses, gender, age, title, and telephone number of employees and dependents covered by the policy.[1] There is also concern that the release of such information may be inconsistent with the federal Health Insurance Portability and Accountability Act (HIPPA). The following discussion will not comment on the application of HIPPA to this matter, however, as this office does not generally interpret federal law.

Section 112.08(7), Florida Statutes, provides that all medical records and medical claims records of current or former county or municipal employees and eligible dependents enrolled in a county or municipal group insurance plan are confidential and exempt from section 119.07(1), Florida Statutes. Such records may not be furnished to any person other than the employee or his legal representative, except as authorized in the subsection. Public school system employee medical records are also recognized as confidential and exempt from section 119.07(1), Florida Statutes.
[2]

In News-Press Publishing Company, Inc. v. Kaune,[3] the court reviewed whether certain medical physical examination reports and related documents pertaining to a city’s firefighters were public records subject to disclosure. The court was primarily concerned with the applicability of the Public Records Law to personnel matters. However, the court also considered the extent of confidentiality provided by section 112.08(7) and (8), Florida Statutes. In Kaune, the newspaper had asked to inspect medical physical examination reports and related documents on city firefighters. These records were requested of the Fort Myers Fire Chief, the doctor who had done examinations of the firefighters, and the City of Fort Myers. The appellant, News-Press, argued that "the exemptions of section 112.08(7) . . . apply solely to medical records filed in conjunction with an employee's participation in a group insurance plan." However, the court determined that the Legislature intended the exemption to extend to all medical records relating to employees enrolled in a group insurance plan. Thus, according to the Kaune court, the exemption in section 112.08(7), Florida Statutes, applies broadly rather than being related solely to medical records filed in conjunction with an employee's participation in a group insurance plan.[4]

Section 119.071(4)(b), Florida Statutes, exempts from disclosure medical information pertaining to a prospective, current, or former officer or employee of an agency which, if disclosed, would identify that officer or employee. Such information may be disclosed if the person or the person's legal representative provides written permission or pursuant to court order.[5] Moreover, every employer who provides or administers health insurance benefits or life insurance benefits to its employees shall maintain the confidentiality of information relating to the medical condition or status of any person covered by such insurance benefits. Such information is exempt from section 119.07(1), Florida Statutes.[6]

Clearly, information relating to an insurance program participant’s medical condition is protected from disclosure. However, there is no clear statement that such protection extends to the name, address, age, or other non-medical information of such participants. When doubt exists as to whether a particular document is exempt from disclosure under Florida’s Public Records Law, the exemption is to be narrowly construed and any doubt resolved in favor of public access.[7]

Due to the lack of clarity in this matter and in light of the recent decision by the Polk County Circuit Court, it may be advisable for the Legislature to clarify its intent on this issue.

Sincerely,

Lagran Saunders
Assistant Attorney General

Escambia County Schools— The Cutting Edge Nationally on Career Academies/Workforce Training

Not long after I took office as the Escambia County School Board Member for district 1, a three-part series of articles came out in the Wall Street Journal on Education. I remember that at that time (January 2007) I discussed these articles on a number of occasions with several people within the district, including Superintendent Jim Paul. The three part series contained some thought provoking (some might consider controversial) ideas on the state of the Education Industry in America, and how intelligence plays an important role in students’ success. (One reason for the controversial nature of this series of WSJ articles was that the author, Charles Murray, was a co-author of the lightning rod 1994 bestseller “The Bell Curve.”)

Part two of this contentious three part WSJ series dealt with the idea of vocational/workforce education as a valid alternative for some students. From the article:

“The spread of wealth at the top of American society has created an explosive increase in the demand for craftsmen. Finding a good lawyer or physician is easy. Finding a good carpenter, painter, electrician, plumber, glazier, mason--the list goes on and on--is difficult, and it is a seller's market. Journeymen craftsmen routinely make incomes in the top half of the income distribution while master craftsmen can make six figures. They have work even in a soft economy. Their jobs cannot be outsourced to India”

The complete article can be found here:

http://www.opinionjournal.com/extra/?id=110009535

I have long believed that the cookie cutter mentality on educational success, i.e. every student must go to college, is fundamentally flawed; America is a great country, with opportunities for success available by more that one avenue----to include learning a trade or a career that can be utilized throughout one's life. I think some students are extremely well served by learning a trade and starting their own businesses--in lieu of College.

I begin this blog entry with the above information/opinion to frame the discussion of what we in the Escambia County School District are doing with respect to career academies and vocational education as a supplement to traditional academic education. Locally we are way ahead of the curve, on the leading edge of a growing movement nationwide to train the next generation of American Workers. Our district has teamed up with The Pensacola Bay Area Chamber of Commerce to expand our career academies; Currently we have 31 different Career Academies in Escambia County High Schools, and 2 in our Middle Schools. In September, 2007, We received significant accolades and a $20,000.00 grant from the philanthropic arm of Ford Motor Company in recognition of our excellent Workforce Education Program. (We were one of only a handful of districts nationwide to earn this distinction. ) Since that time we have continued to move forward and make strides in Workforce Training. Just this week, our efforts were recognized in the national Chamber of Commerce Executive Magazine. The article can be viewed at:

http://www.acce.org/uploadedFiles/Publications/Chamber_Executive_Magazine/2008/Articles/CareerAcademies.pdf

In Escambia County, we are making great strides in many areas, career education being one. This above Chamber of Commerce article illustrates the type of recognition that we garner---and need to show the public. We are a progressive, forward thinking district with a lot to offer. We need to spotlight these types of achievements as a counterbalance to the seemingly endless negative coverage we receive from the local uninformed media. We do have areas that we need to continue to improve--- and we continue to aggressively attack areas that need improvement--- but those locally that are truly in the know realize that great things are happening in our district---and these great things continue to benefit all of the students in our schools.

Public Records Law Vs. Employee Right to Medical Record Privacy

I like some aspects of the Florida Public Records Laws, but I dislike others. Sometimes, boundaries need to be established. Recently a citizen in central Florida won a legal battle with a local school board which now is mushrooming into a major statewide issue.

This individual wanted names and addresses of all employees, family members, and dependents that receive medical benefits from the local school district. The district balked, asking what the information would be used for/why it was being requested.

This spurred a showdown which the individual requesting the records recently won in court. Now that he has won the battle locally, this individual has requested the same information from all 67 Florida school districts statewide--just to put an exclamation point on his victory.

And oh, by the way, this "individual" is also allegedly a medical field marketing consultant.

I have some concerns about open records laws as it pertains to this issue/purpose....

Full article on the subject is here:

http://www.theledger.com/article/20081031/NEWS/810310360/1410?Title=Man_Wins_Fight_for_Public_Records