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Changes to the Fire Investigation Act made at 425 ILCS/25 simplify what is required by a fire chief to notify owners of property violations of the “Life Safety Code”. Electronic mail notification can also be used, in addition to those means used in the past. The Act also reinforces the concept that the Office of the State Marshal and the local fire chief have concurrent jurisdiction regarding investigation and enforcement.

Despite our best efforts, things sometime can go wrong when ambulance personnel respond to an emergency. However, losing a computer, and ending up with a bill for $65,000 from the Office for Civil Rights at the U.S. Department of Health and Human Services is probably not something that we’d anticipate in the “worst possible outcome” category. However, the West Georgia Ambulance, Inc., a small ambulance service provider from Carroll County, Georgia, has found itself in just that position. How did that happen?

Well, it started when a laptop fell off the back bumper of one of West Georgia, Inc.’s ambulances. The ambulance company notified the U.S. Department of Health and Human Services of the loss of the computer. Unfortunately, that laptop contained the protected health information of approximately five hundred patients. Sadly, the patient information was unencrypted.

That would be bad enough. However, when the Department of Health and Human Services investigated further, the Department determined that West Georgia Ambulance had failed, over time, to comply with various requirements of the Health Insurance Portability and Accountability Act (HIPAA). The Department determined that the noncompliance included a failure to conduct a risk analysis, the lack of a security awareness and training program, and a failure to implement HIPAA Security Rule policies and procedures. After the investigation, the Department of Health and Human Services offered West Georgia technical assistance. Despite this offer, however, West Georgia failed to take appropriate steps to address these failures.

The result: West Georgia agreed to pay $65,000 to the Office for Civil Rights at the U.S. Department of Health and Human Services and to adopt a corrective action plan that includes two years of monitoring.

This result should be a warning to all EMS providers. In commenting on this situation, Office for Civil Rights Director Roger Severino said: “All providers, large and small, need to take their HIPAA obligations seriously.”

So, if this is a warning to all EMS providers, what is the “warning” telling us? What do EMS providers need to do to “take their HIPAA obligations seriously”?

1. Make sure that your devices are encrypted. Every device should be encrypted if you are going to store health information on it. You certainly don’t want to lose a laptop – that’s bad news under any circumstances. However, if you lose a device, and the information is encrypted, then (generally) you can presume that there has not been a HIPAA breach, since no one can read encrypted data. If you can’t do this in-house, get professional help from some trusted resource outside your agency who can.

2. For any mobile devices that you use, make certain that these devices are equipped with remote locking and disabling capabilities, so that, if a device does fall into the wrong hands, the information on the device can be protected, even if your agency is no longer in physical possession of the device.

3. Have a policy in place that requires any possible breaches of protected privacy information to be reported immediately. The remote locking and disabling capabilities won’t do any good if command doesn’t know there’s a need to employ these resources.

4. Review your current policies to insure that you have all of the required policies in place. Perform the “risk analysis” that HIPAA requires, and take any corrective action that is suggested by that “risk analysis”.

5. Train your personnel about all applicable provisions of Health Insurance Portability and Accountability Act (HIPAA). This training needs to include instruction on things like security policies and possible breaches of those policies.

For more information about the West Georgia Ambulance, Inc., agreement and the corrective action plan that was required, see the following https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/westgeorgia/index.html.

As government officials in Illinois know, the “Open Meetings Act” describes various steps that those officials – including the trustees of fire protection district — must take to lawfully hold a public meeting. As a part of an emergency order (Executive Order Number 20-7 [also described as 20-5]) to deal with the coronavirus, on Monday, March 16, 2020, Governor J.B. Pritzker temporarily modified certain of the “Open Meetings Act” provisions, to allow fire district trustees and other public officials to more easily hold “remote” meetings.

The language of that Executive Order states, in part at Section 6, that: “… the requirement in 5 ILCS 120/2.01 that ‘members of a public body must be physically present’ is suspended; and … the conditions in 5 ILCS120/7 limiting when remote participation is permitted are suspended…’”.

Thus, this Executive Order significantly expands when fire district trustees and other local government officials can lawfully hold a meeting, when a quorum is not physically present at the meeting location.

However, it is important to note what this emergency order did not change. Among other things, it did not change the requirement: (a) that prior public notice be given of all trustee meetings; (b) that meetings must be open and accessible to the public; (c) that an agenda of the meeting must be prepared and followed; (d) that minutes be taken and later approved; and (e) that the public must be allowed to address the Board of Trustees, although this last requirement may be very difficult to implement in practice. Nonetheless, to implement this provision, the Executive Order encourages public bodies “… to provide video, audio, and/or telephonic access to meetings to ensure members of the public may monitor the meeting, and to update their websites and social media feeds to keep the public fully apprised of any modifications to their meeting schedules or the format of their meetings due to COVID-19, as well as their activities relating to COVID-19…”..

In addition, the Executive Order encouraged public bodies “… to postpone consideration of public business where possible …”. Thus, trustees should consider whether the matters scheduled to be considered at an upcoming meeting of the Board of Trustees is of a nature that the meeting could be postponed without unduly interfering with the operation of the fire district. Because all of us are in uncharted water in this area, it would likely be wise to not address major (apparatus purchase) or “sensitive” (personnel) issues under the provisions of this Emergency Order. Additionally, trying to act in “closed”/executive session under the provisions of the Emergency Order would be practically difficult and generally should be avoided if possible. In addition, at a future meeting not held under the provisions of the Emergency Order, the prior actions of the board where the members met “remotely” should be “ratified and confirmed”.

The potential to postpone a meeting should be carefully considered, since the virus can spread in different ways, including through “community transmission”. This phrase is a fancy way of saying that we don’t know how or why it got where it did, but it did get there. “Community transmission” means that a person who has the virus is not known to have had contact with someone known to be infected with the virus, or known to have traveled to places where coronavirus is circulating (like China or Italy). The board might question whether a meeting should be held, for example, if the primary reason for the meeting is that “we always meet on the third Thursday of the month …” Public health and safety may require a deviation from the ordinary schedule in these unusual times.

As they consider whether or not to meet, trustees should be careful to do so in such a way that does not involve “contemporaneous interactive communication” with other trustees that could violate other provisions of the Open Meetings Act which have not been modified by the Executive Order.

In part because of the dangers from “community transmission” of the virus, when trustee meetings are held, “social distancing” should be observed, and the other provisions of the Executive Order – such as a ban on “50 or more people [being present] in a single room or a single space at the same time …” should obviously also be followed. In addition, trustees should also be certain to obey any other provisions regarding assembly which may have been passed by action of any applicable unit of local government.

While the information in this letter is accurate when written, please understand that the response to the coronavirus is a fast-moving target, and is subject to change at any time.

The information presented above is not intended as legal advice, and public officials should consult with their own legal advisors about specific ways in which the Illinois Open Meetings Act applies to their public body and specific circumstances. The provisions of the Executive Order are also subject to change from time to time, as the pandemic itself changes its impact on daily life.

The physical dangers to firefighters are well known. Less well known are the emotional challenges that result from being a firefighter or paramedic. The First Responder Suicide Prevention Act (5 ILCS 840) attempts to address these challenges. The new Act amends the Fire Protection Training Act to require training on issues related to stress, trauma, and post-traumatic experience by firefighters. It encourages referrals to employee assistance programs, within the fire department or outside of it, and creates requirements to insure that any information shared on these issues remains confidential.

The Office of the State Fire Marshal has made a big change in its administrative rules. While changes to administrative rules are generally uninteresting topics, the change at 41 Ill. Adm. Code 100.7 requires attention. By adoption of this rule change the Office of the State Fire Marshal has adopted the 2015 edition of the National Fire Protection Association’s “Life Safety Code” (subject to certain OSFM modifications). Pursuant to the “Fire Investigation Act” (425 ILCS 25), unless an Illinois fire protection district has adopted a different code, the 2015 edition of the “Life Safety Code” will now apply to all occupied buildings in within the district, except in schools governed by the Illinois State Board of Education.