Adult Performer Safety Needs Re-Evaluation by Don Fernando

The opinions, beliefs and viewpoints expressed by the various contributors on this web site does not necessarily reflect the opinions, beliefs and viewpoints of AdultBizLaw.com and Michael Fattorosi nor should they be considered legal advice.

Reposted with Permission Written by: Don Fernando as first published on  August 29, 2012 at

http://donfernandoxxx.wordpress.com/2012/08/29/adult-performer-safety-needs-re-evaluation/

Presumption at hand: The FSC (Free Speech Coalition); who proclaims to be the spokesperson for the Adult Industry in the USA, has declared a moratorium on partner scenes (2 or more performers engaging in sexual activity either with condoms or without) until September 4, 2012. The announcement by FSC and Manwin Media has basically instructed the American industry talent that under the presumption that all talent that has been performing this year are presumed to have been exposed to Syphilis and to control the spread of said disease that “in order to start work, all performers should go to Cutting Edge Testing (administered by Dr. Peter Miao) or to their physician and receive a large dose of injectable Penicillin or a substitute injection of Ceftriaxone for those allergic to Penicillin as a prophylactic (prophylactic is defined as a preventive medicine or course of action) measure.

Talent treated with the injected antibiotic will then be allowed to resume booking work (in the approximately 90% non-condom USA industry) to start 10 days after their prophylactic treatment. NOTE: “Prophylactic medicine is that which is administered to a patient as said patient is presumed to be exposed to an infection or disease.”

Manwin is onboard with this protocol and is helping with the implementation as the majority of their recent productions are of the “non-condom” variety and are expressing the “Let’s get back to work, folks!” posture. They also seem to feel that all performers based in the USA are presumed to be exposed to some degree to Syphilis hence their support of the prophylactic injection.

I googled “When can one resume sex after treatment to cure Primary Syphilis?” – here is an excerpt of what came up on Google from a government STD website covering both Primary Syphilis and Secondary Syphilis.: “However you will usually have to avoid sexual activity for at least two months after ‘treatment’ begins. Then you should use condoms. You should be checked regularly for some years after your treatment to check for any recurrence.”

Note the words in the first sentence “avoid sexual activity for at least two months (60 days) after ‘treatment’ begins.”

There is a huge difference between a 10 day and 60 day recommended abstinence of sexual activity. The FSC and Manwin Media plan to allow “presumed exposed and’or infected” performers to “resume sexual activity 10 days after receiving the prophylactic injection” seems to be going against LA County Health, US-CDC and US Dept. of Health and Human Services recommendations to prevent re-exposure and/or re-infection of the highly contagious bacterial infection that is Syphilis.

Is this really a well thought out policy? I do not think so…wrap you head around it and think it all the way through.

Best To All My Fellow Performers.

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Porn- The New Political War Grounds? by Alia Janine

The opinions, beliefs and viewpoints expressed by the various contributors on this web site does not necessarily reflect the opinions, beliefs and viewpoints of AdultBizLaw.com and Michael Fattorosi nor should they be considered legal advice.

 

Reposted with Permission Written by: Alia Janine as first published on  August 28, 2012 at

http://aliajanine.com/2012/08/28/porn-the-new-political-war-grounds/

Since I’ve been on a roll with blog posts this past week, with the current issue(s) at hand in the industry, and Im obviously not working like the rest of you (or at least SHOULDN’T be), so I thought I might as well throw my 2¢ in. I like to crack jokes and all but that doesn’t mean I don’t care, Im not paying attention, or doing my homework. People have seriously gotten out of control, did some of you forget that most of you used to be friends or were at least civil to each other, and slightly respected each others idiosyncrasies? Geesh. People need to focus on the bigger picture and start coming up with solutions instead of adding more problems. It is an election year and porn is not a winning candidate right now.

Some people must realize that this is EXACTLY what Michael Weintstein wanted to happen. Him and his little army took out AIM because it was the ONE place that prevent outbreaks and unnecessary damaging PR. He KNEW that it would cause total chaos. Sadly, he was right. Although Im sure he was thinking it was going to be an actual HIV scare, Im sure he’s probably thrilled nonetheless. Because his plan is working, you fools! Am I the only one that’s ever read The Art of War? Seriously. And I don’t give a FUCK (sorry for swearing) if people didn’t like AIM, AIMs purpose was to PREVENT things like this from happening. Yes, people should have the right to choose where they want to get tested, but those testing facilities need to have a ONE common data base (having all the facilities give out that information is much more scary then one, think about it) where all performer’s test results are held so agents and production companies can look and prevent this from happening. It will also prevent an entire industry from having to shut down and 1000s of people being out of work. Just saying.

Before anyone gets in my face about the “privacy” of medical records, let me clue you in on a some legal shit (sorry for swearing) that you may not know, and if you do know and don’t like it, too bad- it’s the LAW. I’ll make it simple and use examples though so the ignorant people hear me (little edited Lauryn Hill for ya). When people have to get drug tested, vaccinations, full medical exams, or whatever for certain jobs because they’re either working with heavy machinery, in the medical field, or acting in a mainstream movie; the people that are going to hire them have the right to see those results because seeing those results is a requirement to obtain that position. Why do they have that right? Because under (most) state laws when someone is injured at their place of work, their employer is completely liable. If their employer is paying them to do something that requires a drug free mind, or to not be acceptable to certain diseases, or to perform acts that could cause an injury, and If the employer didn’t take any of the precautions to prevent things that could’ve been avoidable; they will be sued, their business possibly shut down, and so on.

WE ARE NO DIFFERENT. Remember Cal/OSHA and all their talk about haz-mat suits and dental damns, they weren’t kidding. We are knowingly and willingly exchanging bodily fluids, that can possibly harm us, with complete strangers sometimes, and people are worried about the people they work for/with seeing their test results? Are you skull fucking me with this shit (sorry for swearing)?!?! We are Cal/OSHA’s wet dream, and it would be a total nightmare for the industry if they got their overly, creepy clean hands in it. Like it or not, the companies that hire us have EVERY right to see those test results because if a performer is to contract something on a set, that company is liable for that person’s care, workman’s comp., and so on. Which is GOOD for performers.

Thus why the APHSS system is needed. Regardless if you like the FSC or not, they’re the only ones I saw step up to the plate like Sharon Mitchell did to do something to protect us. And yes, people have every right to be nervous about having your “real name” in a data base like that. But let’s keep real, performer’s real names are EVERYWHERE online. If someone wants to find it, they’re not going to hack into a data base to do it (unless they’re a psycho like the name we do not speak of). The internet, lube, and some time is much easier. Although I do believe the FSC needs to focus more on the whole picture and stop trying to control everything. But look at it this way, if Manwin and a few other companies are forking out all this money for medical equipment, testing reimbursements, and treatments, Im fairly certain they will make sure the APHSS data base is secure. Specially if we ask him nicely about it on Twitter. lol If you don’t like the system or the way it works, come up with something that will work better, and change it.

November is not that far away and this is not going to help the issue with condoms in any way. With everyone in the industry fighting each other, the general public is going to see that, think we’re all incompetent, and they’re going to vote yes. I say we beat them at their own game. They’re going to be voting on our Constitutional Rights on us having control over our own bodies, that is so not cool with me. I say we let the performer’s decide If they want to wear condoms or not. Not that I’ve ever seen anyone say no before but let’s really make it a point. And the WHOLE POINT is that we have the RIGHT TO CHOOSE. Let’s make a big fucking (sorry for swearing) deal out of it. Title- Porn Cleans Up It’s Act, “After a small syphilis outbreak in the Porn Industry, companies are letting performers chose to wear condoms or not on top of regular testing to ensure the safety of all performers….” and “porn companies ungraded and invested it medical grade cleaning products and equipment…” Blah, blah, blah. If some of us are already wearing condoms and playing along with the other side, people aren’t going to vote yes, and Michael fuck-face Weintstein (Im not sorry for swearing) will have to go back to the drawing board. (Plus we know damn well most performers are not going to use them anyways.) Get it together people, we’re worse than the Democrat and Republican party’s right now. We’re supposed to be fighting the system, not turning into it. Duh.

As for the infamous “shot” in the ass…. For one, if some of you don’t know you’re allergic to penicillin by now, you had horrible parents and are an idiot, I actual fear for your survival in this world. Secondly, it isn’t healthy to get a shot like that when you don’t need it but, at the same time it’s not going to kill you. Considering when the whole syphilis thing came out no one (really) knew who was “patient zero,” who they worked with, who those people worked with, and so on. Having everyone get a shot was definitely a panic move, but at the same time without everyone in one system there was no real way to tell who had what when, and people needed to react. Talk to your doctor, only they can tell you what’s best for your health. If you have to wait or want to wait the 90 days so be it. We are talking people LIVES here. Dumdums. I whined and talked shit (sorry for swearing) about it but I got it done because of the “what if” factor. Stock up on probiotics, ladies they have special supplements just for you too, and quit yer bitchin’. Be a part of a solution not the problem.

I also think some people could use a little refresher course in Sex Ed, the STI part that is. STIs are something every person needs to worry about in the jizz biz or not. For the fact that they are our only real job hazards- I can’t say Im not surprised certain people don’t know about them, but it is very bothersome. And it’s not that they don’t know what they are or at least their names, but they obviously don’t know about them and obviously not what some look like. Knowing about something and actually comprehending it can be two completely different things. So I took the initiative and went to Wikipedia for you. Remember, knowing is half the battle. ;)

Emails, Databases and Doctors – Are We Doing it Right ?

This article is a continuation of my examination of the testing facilities utilized by the adult industry to check for the presence of sexually transmitted diseases. There is a little known but albeit interesting law in California that should be of special interests to those in the adult industry for two reasons. First, California Health and Safety Code section 123148 requires that a “health care professional” who orders a laboratory test for sexually transmitted diseases “shall” provide those results to the patient. Further, test results for HIV antibodies cannot be provided to the patient by the healthcare professional by the Internet or other electronic means. The statute reads in relevant part;

123148.  (a) Notwithstanding any other provision of law, a health
care professional at whose request a test is performed shall provide
or arrange for the provision of the results of a clinical laboratory
test to the patient who is the subject of the test if so requested by
the patient, in oral or written form. The results shall be conveyed
in plain language and in oral or written form, except the results may
be conveyed in electronic form if requested by the patient and if
deemed most appropriate by the health care professional who requested
the test...
(f) Notwithstanding subdivisions (a) and (b), none of the
following clinical laboratory test results and any other related
results shall be conveyed to a patient by Internet posting or other
electronic means:
   (1) HIV antibody test.
   (2) Presence of antigens indicating a hepatitis infection.
   (3) Abusing the use of drugs.
   (4) Test results related to routinely processed tissues, including
skin biopsies, Pap smear tests, products of conception, and bone
marrow aspirations for morphological evaluation, if they reveal a
malignancy.

 

These two paragraphs have serious implications as to how the industry currently handles testing as well as how that information is shared with a performer. The first paragraph requires that only a physician or other “health care professional” order the testing for the sexually transmitted disease panel since only the physician or other “health care professional” can share the tests results with the patient. Also, if those test results include an HIV antibody test those results cannot be shared via the Internet on a database, by email or even through a phone call. You read that correctly. Test results cannot even be shared with a patient via a phone call. At this point you may be saying that I must be crazy – all doctors share those results by phone. Except that there is a current bill in the California Legislature to correct that problem with the original law. It is referred to as Assembly Bill 2253 and so far it appears to have bipartisan support in the Legislature but as yet to become law. ( See http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_2253&sess=1112&house=A )

Here is a summary of the bill from MapLight California (See http://maplight.org/california/bill/2011-ab-2253/1069303/history )

Existing law authorizes the results of a clinical laboratory test performed at the request of a health care professional to be conveyed to the patient in electronic form if requested by the patient and if deemed most appropriate by the health care professional, except that existing law prohibits the conveyance by Internet posting or other electronic means of test results relating to HIV antibodies, the presence of hepatitis antigens, and the abuse of drugs, and specified test results that reveal a malignancy.

This bill would revise these provisions to refer to the disclosure of test results, would provide that the telephone is not a form of electronic communication, and would authorize the disclosure by Internet posting or other electronic means of clinical laboratory test results related to HIV antibodies, the presence of hepatitis antigens, and the abuse of drugs, and specified test results that reveal a malignancy if requested by the patient, the means of conveyance is deemed appropriate by the health care professional, and a health care professional has already discussed the results with the patient.

Obviously, if a bill is needed to make it legal for a doctor to tell you whether you have or don’t have HIV on the phone, it is still very much illegal to provide that information to you via email, a database or anything sent to your phone. Currently, it appears that only a “health care professional” can tell you in person what the results of your HIV test is. Some veteran performers may remember when testing started in the industry they had to wait for the results in the testing center in Venice, California. This was even prior to the establishment of the Adult Industry Medical clinic.

If you are now being “sent” your test results by the doctor or the lab that is not allowed under California Health and Safety Code section 123148 (See http://www.mbc.ca.gov/consumer/complaint_info_questions_practice.html#18 ). Further, even with the patient’s agreement the prohibition against sharing test results electronically is NOT allowed. A performer cannot even waive this provision of California law.

So who is a “health care professional” and does a performer actually need to be examined prior to having a test ordered or can a performer simply walk into a clinic and request a test. This is where the laws surrounding HIV testing are not quite clear. And the laws are different in regards to public free testing sponsored by a county or state health department as compared to private medical testing. It is not clear whether a full examination is required. However, it does appear that a performer themselves cannot order a test from a laboratory. That order must be placed by a health care professional.

Based on everything I have read it appears that only a “licensed health care professional” licensed under California’s Professions and Business codes can order an STD test from the lab. Obviously it would be lawful for a physician licensed in the state of California to order such a test. However, what about Nurse Practitioners, Physician’s Assistants and other medical personnel you might encounter in a testing facility ? Nurse Practitioners and Physician’s Assistants are licensed by the state of California so it seems that they can order STD testing. Can front desk clerks and other non-licensed staff order STD tests – the answer is probably not.

At this point in time it appears that the way tests results are ordered and provided to performers within the adult industry may not be in line with current California law. If Assembly Bill 2253 finally passes and is signed into law by the Governor of California we will be one step closer to being compliant with that change in the current law.

If you would like to learn more about laws pertaining to HIV and the testing for such in California please download this guide from the state of California -> http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=25&cad=rja&ved=0CGQQFjAEOBQ&url=http%3A%2F%2Fwww.cdph.ca.gov%2Fprograms%2Faids%2FDocuments%2FRPT2007-06-14-2849-2006AIDSLAWS.pdf&ei=LN48UMDIK8iz8AHtvYGoCw&usg=AFQjCNH63w71vDufrICv3mYyvdYKVm34Kw&sig2=ZGP8YZWMEBLk-WT1cM9ebw

 

 

 

The Condoms are Coming

http://www.xbiz.com/articles/137838/fattorosi

With words similar to those, Paul Revere ushered in a revolution that transformed the face of a nation. Similarly, on June 7, Cal/OSHA changed the shape of this industry’s future which might ultimately lead to a revolution in adult entertainment. I was able to attend the meeting and even tweeted the discussions from the meeting live via my Twitter account. As it has been reported, the turnout was strong with numerous industry people in attendance representing all aspects of the industry.

What was quite clear from the meeting was the absolute distrust the industry has for those on the Cal/OSHA Board that have drafted the proposed regulations. There were statements made during the meeting that Cal/OSHA was attempting to regulate the industry out of existence for moralistic and religious reasons or perhaps that the AIDS Healthcare Foundation, the Pink Cross Foundation and Cal/OSHA were in some way working together to drive the industry out of California.

I can certainly understand how many in the industry may feel this to be true, from my experience dealing with Cal/OSHA and state safety regulations, that is simply not the case. Cal/OSHA is attempting to bring this industry in line with numerous other industries that are regulated in regards to employee safety. Cal/OSHA actually feels that the proposed regulations are less intrusive and harsh than the current regulations. While the new regulations proposed by Cal/OSHA are yet to become law and may not for another year, it was clear from their meeting that condoms and other barrier protection methods are now required and are currently the law in porn.

Under the proposed regulations, barrier protection and condoms may not have to be utilized for oral sex scenes when certain requirements are met by the producers and talent. However, other than that one issue, barrier protection and exposure issues will change how adult entertainment is produced and consumed.

Unfortunately due to the heated nature of the meeting, not all issues could be covered and there are still numerous discussions that are necessary as to the most basic issues such as how to dispose of the used barriers, how to handle clothing used on set, record keeping requirements and employee training issues. This article will focus on the proposed regulations and want it means to producers and talent.

INDEPENDENT CONTRACTORS OR EMPLOYEES ?

One of the first issues to be raised during the meeting was that the proposed regulations only apply to employees and not independent contractors. Numerous performers and producers spoke up and attempted to declare themselves independent contractors and thus not bound by the regulations. Cal/OSHA did not directly address the IC vs. EE issue and merely referred the audience to the California Labor Code and existing case law.

Rest assured that for purposes of the proposed regulations, performers are indeed employees, even if only for a day, of the hiring studio. However, under the tax code, many of those same performers may actually be independent contractors. There are two different legal tests to determine employee status under the California Labor Code and the U.S. Tax Code. According to the Department of Industrial Relations of the state of California, the California Supreme Court has adopted the “economic realities test” as noted in S. G. Borello & Sons, Inc. vs. Dept. of Industrial Relations (1989) 48 Cal.3d 341. The economic realities test sets forth several factors for determining whether someone is an independent contractor or employee:

    • Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
    • Whether or not the work is a part of the regular business of the principal or alleged employer;
    • Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
    • The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
    • Whether the service rendered requires a special skill;
    • The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
    • The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
    • The length of time for which the services are to be performed;
    • The degree of permanence of the working relationship;
    • The method of payment, whether by time or by the job; and,
    • Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

Even where there is an absence of control over work details, an employer-employee relationship will be found if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary. (Yellow Cab Cooperative vs. Workers Compensation Appeals Board (1991) 226 Cal.App.3d 1288).

There is little doubt that a performer would be determined to be an employee under the above noted tests. Several studios have already been fined by Cal/OSHA and to this author’s knowledge none have been overturned on appeal. Most recently, Hustler Video was fined over $14,000 by Cal/OSHA for the lack of barrier protection on set, lack of a blood borne pathogen plan as well as other infractions. According to an article on XBIZ.com on April, 5, 2011, Hustler plans on appealing its fine. However, there has been no recent news as to that particular case.

The only potential exception this author can see to the regulations is when performers coproduce a scene and trade content with each other. As long as there is no monetary compensation offered as payment for services, then more than likely, Cal/OSHA would not determine that a content trade situation to be employment.

Getting past the IC vs. EE argument, what does this mean for the industry and how will the proposed regulations effect content production in California on a daily basis?

Condoms for blow-jobs? First, the proposed regulations require condoms and/or barrier protection (dental dams) for all sex scenes where there is a possibility of an exposure by a performer to the bodily fluids of another performer. The only exception to this has been carved out for mainstream studios in so much that saliva has not been classified as a bodily fluid. The reason for this exception is probably apparent to everyone except Cal/OSHA.

The only exception to the condom/barrier rule is for oral sex scenes and only when both performers have a clean DNA PCR HIV test as well as clean gonorrhea and chlamydia test results within 14 days of the scene and have both been completely vaccinated for Hepatitis B and HPV.

It should be noted that the proposed regulations call for urine testing as well as throat and anal swabbing for gonorrhea and chlamydia for both male and female performers. It should also be noted that it takes a series of three injections over the course of six months for someone to be fully vaccinated for hepatitis B. Therefore, all performers should immediately seek hepatitis B vaccinations so as to insure they can continue to work once the proposed regulations actually take effect.

If a performer is not properly vaccinated or does not have a clean test, then condoms/barrier protection must be used at all times.

No more facials? The next question is — what about the money shot? According to the proposed regulations ejaculate cannot be placed into any orifice and or on any non-intact skin. In layman’s terms, cream pies, facials and/or swallowing will no longer be allowed. Ejaculate can only make contact with intact unbroken skin found on a performer’s breasts/chest, back, legs and feet. Obviously, any producer is still free to use non-harmful fake ejaculate to simulate real cum or squirting.

If for some reason, real human ejaculate or bodily fluids other than saliva does find its way onto broken skin and or an orifice — that would be considered an “exposure” and immediate medical attention must be provided and documented by the employer. Further, the employer must provide post exposure testing and all results recorded in accordance with Title 8 of the California Code of Regulations Division 1, Chapter 7.

Now that AIM is gone what’s next? So who’s going to be paying for all this testing, vaccinations, record keeping and medical treatment because of wayward money shots? According to the proposed regulations, all medical testing fees, treatment and record keeping requirements must be paid for by the producers and studios. Which producer, well that answer wasn’t so clear according to Cal/OSHA.

Basically, Cal/OSHA’s position is that the employers (studios and producers) can ban together to create cooperatives to negotiate with medical care providers and testing centers to bargain for the best price and therefore it will even out over the long run. Cal/OSHA assumes that all producers and studios will be “piggybacking” off each other’s tests. Further, these new additional costs cannot be passed on to the performers or talent agents. It is solely the responsibility of the employer to pay for these costs. On the bright side for the studios and producers, they will now be able to dictate exactly where talent will receive their testing from.

The condom police? So how is Cal/OSHA going to enforce these new regulations once they go into effect? Are they going to be sending Cal/OSHA’s cops in lab coats and environmentally friendly smart cars in droves to Porn Valley to peak in on everyone? The answer might be yes.

According to Cal/OSHA, enforcement will occur in two ways. The first and most obvious is because of an employee (performer) calling into Cal/OSHA’s offices and reporting a violation of the regulations. This alert will mandate an investigation by their offices. They literally have no choice and must open an investigation and look into the performer’s complaint. Thus, that is the easiest and quickest way to get Cal/OSHA knocking on your door. Be aware that a complaint by a performer can be made anonymously as well.

The second is what the Cal/OSHA Board referred to as a sweep. It is possible that they will send out a contingent of inspectors on a regular basis to do spot checks on studios and producers. At least the ones they can locate. In my previous experience I have seen Cal/OSHA perform “sweeps” on rare occasion and do not think that will be a likely occurrence. However, it may occur once the proposed regulations take effect just as a gentle reminder that compliance is mandatory.

You may be asking how can Cal/OSHA determine the difference between a disgruntled performer from a competitor or even a group such as AIDS Healthcare Foundation making an anonymous report. I don’t know how they can but Amy Martin from Cal/OSHA did indicate that they have been dealing with this very issue with other industries and have developed the ability to determine the difference. It should be noted that only a complaint from an actual performer mandates an investigation. All other complaints do not require an investigation and Cal/OSHA has the discretion to take no action on a report of a violation.

Vegas baby, Vegas! Finally, one last point that has been overlooked by other writers, is there a threat of federal regulation. Cal/OSHA made it very clear that before their proposed regulations can go into effect they must first be approved by the federal OSHA. Which means that, once approved by federal OSHA, these same regulations can be adopted by any other state. In essence, the discussions and the debate, the industry is currently having are extremely important since we may not get another chance to debate these issues.

It is this author’s opinion that once approved and adopted in California, these regulations will eventually be adopted and approved by other states. I would not be surprised to see a push for states such as Nevada, Florida and Arizona to pass similar legislation.

Viva la revolucion! The proposed regulations are over 17 pages long and are quite involved. I have only been able to touch briefly on some of the more important aspects of the proposed regulations. I strongly suggest that everyone read and digest the regulations and try to understand what they will mean to the future of not only California adult entertainment but in general the industry in the U.S.

Will these regulations cause the industry to pack it’s collective bags and find greener pastures elsewhere? Will it cause it to revert back to the pre-Freeman underground days of lore or will it simply cause the studios to treat the performers better and adopt the practices outlined? At this point, no one knows. Whichever it may be, certainly there is a revolution afoot.

Porn, Privacy, HIPAA – Redux

http://www.xbiz.com/articles/124370/fattorosi

In February, the AIDS Healthcare Foundation took their fight against AIM and the adult industry to the authorities of the federal Office for Civil Rights, a federal agency under the U.S. Department of Health and Human Services that enforces HIPAA, the California Office of Health Information Integrity enforcement Unit and Los Angeles County’s Health Facilities Inspection Division.

Rhett Pardon, of XBIZ, quoting AHF’s letter stated, “The authorization is essentially a waiver of privacy rights that is against public policy,” the letter said, citing Civil Code § 56.37. “Disclosures of testing results pursuant to such an invalid authorization would therefore appear to breach the actors’ privacy rights.”

The U.S. Department of Health and Human Services will now investigate whether AIM has violated California Civil Code § 56.37 as well as federal law. Jeffery Douglas, attorney for AIM, has stated that AIM’s HIPAA release has been vetted by experts in the privacy law and HIPAA and that AIM stands behind its release.

So what happens now and what does this mean to the industry and more specifically to performers and producers of adult content? If the investigation concludes that AIM’s release is too broad, their release may have to be rewritten, limiting who, how and for how long testing results may be disclosed. This may change how the industry handles the issue of testing between producers and performers. Access to testing results by producers may have to be blocked with only performers showing each other test results prior to shooting.

Performers themselves could share testing results with the producers though. There is no restriction on an individual’s rights to share their medical history or test results with whomever they wish.

Obviously, this issue will continue to evolve and everyone must stay informed as to how HIPAA may change how the industry does business. Cal/OSHA will be holding hearings later this month (June 29, 2010) as to the use of condoms on adult sets.

The original article “Porn, Privacy and HIPAA” was published in the summer of 2009 in XBIZ directly after the last HIV outbreak in the industry, however the issues covered in it remain relevant. The following are excerpts from that article.

Within HIPAA are confidentiality provisions of the Patient Safety Rule that prevent, in certain circumstances, the public disclosure of private healthcare information of a patient by a medical provider, health plan and health care clearing houses.

However, HIPAA does not apply to employers. The Privacy Rule does not prevent your employer from asking you information about your health if your employer needs the information to administer sick leave, workers’ compensation, wellness programs, or health insurance. However, if your employer asks your health care provider directly for information about you, your provider cannot disclose the information in response without your authorization.

It should be noted that if your private medical information is disclosed by a medical provider, that medical provider or their employee may face civil as well as criminal liability. A Los Angeles woman was indicted under the federal HIPAA privacy law for accessing the private medical records of celebrity patients at UCLA Medical Center and selling information obtained from those files to a national media outlet. The celebrities whose records were breached reportedly included actress Farrah Fawcett, singer Britney Spears and California first lady Maria Shriver.

The Privacy Rule allows medical providers, such as AIM, to disclose protected health information, without authorization, to a public health agency that are legally authorized to receive such reports for the purpose of preventing or controlling disease, injury, or disability. In this case, the Los Angeles County Public Health Department would be such an agency. Generally, medical providers are required to limit the protected health information disclosed for public health purposes to the minimum amount necessary to accomplish the public health purpose. Unfortunately, HIPAA prevents the public disclosure of those that are infected or who may have been exposed.

However, individual performers that might be afraid that they were exposed could still inquire into the identity of those exposed to determine if they if fact were. Private disclosure in the interest of public health may be allowable. Under the Privacy Rule, a medical provider may disclose protected health information to a person who is at risk of contracting or spreading a disease or condition if other law authorizes the covered entity to notify such individuals as necessary to carry out public health interventions or investigations. For example, a covered health care provider may disclose protected health information as needed to notify a person that (s)he has been exposed to a communicable disease if the covered entity is legally authorized to do so to prevent or control the spread of the disease.

However, performers must be careful about sharing what information they may learn. An infected performer that is “outted” by another individual can file a lawsuit under the common law theory of public disclosure of private facts. If a false report is made as to a performer’s HIV positive status, that performer may have a claim for false light. This is were the plaintiff is placed into a false light in the eyes of the public that may damage their career and cause emotional distress. Obviously, if someone mis-reports that a performer is HIV positive or even exposed to HIV that can cause great distress as well as the lost of a career. Damages for both public disclosure and false light could be extensive.

Overall, in an adult industry that lays its self open to all that consume its product, there is still a need for privacy within the industry.

Porn, Privacy and the HIPAA

http://www.xbiz.com/articles/113008/fattorosi

How can an industry that bears all to its consumers ever consider privacy to be a hot topic? The story of the possible infection spread rapidly throughout the community and even into mainstream press. I was personally contacted by Los Angeles’s Tribune affiliate KTLA for a quote after the reporters there picked up the story from the Los Angeles Times.

As I write this article, what did not make it into the press were the actual identities of the performers infected or exposed in this most recent outbreak.

Dr. Sharon Mitchell, director of the AIM Healthcare Foundation, declined to make the identities of those performers known, citing confidentiality issues.

What Mitchell was referring to was a rather unknown law within the industry, the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Within HIPAA are confidentiality provisions of the Patient Safety Rule that prevent, in certain circumstances, the public disclosure of private healthcare information of a patient by a medical provider, health plan and health care clearing houses.

However, HIPAA does not apply to employers. The Privacy Rule does not prevent your employer from asking you information about your health if your employer needs the information to administer sick leave, workers’ compensation, wellness programs or health insurance.

However, if your employer asks your health care provider directly for information about you, your provider cannot disclose the information in response without your authorization.

It should be noted that if your private medical information is disclosed by a medical provider, that medical provider or its employee may face civil as well as criminal liability.

Los Angeles woman was indicted under the federal HIPAA privacy law for accessing the private medical records of celebrity patients at UCLA Medical Center and selling information obtained from those files to a national media outlet. The celebrities whose records were breached reportedly included actress Farrah Fawcett, singer Britney Spears and California first lady Maria Shriver.

Many posters on adult message board GFY.com, as well as performers I talked to immediately after AIM reported the outbreak, indicated that they were not pleased that more information was not released. Several performers indicated that they felt as though it was their right to know since they could also become infected.

Unfortunately, until an outbreak such as this becomes a matter of public health, the information must remain confidential. The Privacy Rule allows medical providers, such as AIM, to disclose protected health information, without authorization, to a public health agency that is legally authorized to receive such reports for the purpose of preventing or controlling disease, injury or disability.

In this case, the Los Angeles County Public Health Department would be such an agency. Generally, medical providers are required to limit the protected health information disclosed for public health purposes to the minimum amount necessary to accomplish the public health purpose.

Unfortunately, HIPAA prevents the public disclosure of those that are infected or who may have been exposed.

However, individual performers that might be afraid that they were exposed could still inquire into the identity of those exposed to determine if they in fact were. Private disclosure in the interest of public health may be allowable.

Under the Privacy Rule, a medical provider may disclose protected health information to a person who is at risk of contracting or spreading a disease or condition if other law authorizes the covered entity to notify such individuals as necessary to carry out public health interventions or investigations.

For example, a covered health care provider may disclose protected health information as needed to notify a person that (s)he has been exposed to a communicable disease if the covered entity is legally authorized to do so to prevent or control the spread of the disease.

Other posters on GFY.com indicated that once a performer gained the knowledge of the identities of the infected and exposed individuals they should make it known to the rest of those in the industry.

Some even argued that this was allowable since HIPAA does not apply to individuals that do not have access to the medical records of those infected and or exposed. However, one must be aware that even though HIPAA may not prevent such a disclosure, there are common law torts that can result in a civil lawsuit if certain private facts are disclosed.

An infected performer that is outed by another individual can file a lawsuit under the common law theory of public disclosure of private facts. If a false report is made as to a performer’s HIV positive status, that performer may have a claim for false light.

This is where the plaintiff is placed into a false light in the eyes of the public that may damage his/her career and cause emotional distress. Obviously, if someone misreports that a performer is HIV positive or even exposed to HIV that can cause great distress as well as the loss of a career. Damages for both public disclosure and false light could be extensive.

Overall, in an adult industry that leaves itself open to all that consume its product, there is still a need for privacy within the industry. However, it is apparent that the manner in which this last situation was handled was not to the satisfaction of other performers, directors, agents and producers in the San Fernando Valley.

They felt as though they deserved to know which performers were actively infected and which were on the quarantine list so as to protect themselves. Immediately after the outbreak I talked with numerous performers. Some of which indicated that they would be either leaving the industry, no longer doing boy/girl scenes, or rethinking what sexual acts they will do from this point forward. Lack of information can breed resentment and doubt.

There is little doubt in this writer’s mind that sometime in the future, this issue will once again reappear.

How the industry handles it and what comes to light in the middle of a media storm will affect the industry’s ability to remain autonomous. There has been a push once again to regulate the industry through legislation and public policy. Failure to heed these warnings can result in the regulation of the industry by groups on a national level that do not have the industry’s best interest in mind.