Attorney General Sam Olens August Update

August Update from the Attorney General’s Office

Federal Healthcare Regulations Raise Privacy Concerns for Georgians

Last week, along with 12 other state attorneys general, I sent a letter to the U.S. Department of Health and Human Services (HHS) expressing grave concerns that consumers’ private information is left unprotected under the new health insurance exchanges that are set to go into effect this fall.

The letter to Secretary Kathleen Sebelius says privacy protection measures written into HHS’s rules governing programs that assist consumers with enrolling in the new health care exchanges are woefully inadequate. The exchanges were created as part of the Affordable Care Act.Personnel working for various groups and agencies to help consumers sign up for health insurance will have considerable access to consumers’ personal information, yet the HHS rules do not provide clear privacy protections. This raises serious questions about the security of highly confidential information of potentially thousands of Georgians.

The ACA provides funding for groups, such as navigators, to help consumers enroll in health insurance plans. As part of that process, these navigators and other assistance personnel will have significant access to consumers’ private and personal data. However, the letter states that the federal rules fail to ensure that navigators will be adequately trained to safeguard data provided by consumers. Nor do the rules make clear who is responsible if an identity theft occurs.

HHS rules promise that training will be ‘extensive,’ but officials with the agency have already cut back on the required hours of training from 30 to 20 online hours because there isn’t enough time for adequate training before the health insurance exchanges open.

Moreover, the proposed consumer safeguards are woefully substandard and come up short when compared to other privacy protections at the state and federal level. For example, the guidelines governing navigators are less demanding than federal privacy requirements applicable to federal census workers.

Even more concerning for the attorneys general is that HHS currently does not require criminal background checks or fingerprint checks of potential navigator hires and does not list any prior criminal acts as being a dis-qualifier for someone seeking to work with consumers and their private information.

We are now discovering that Obamacare will not only harm consumers’ pocketbooks, but it will also put them at serious risk of identity theft and fraud. HHS must implement an on-the-ground plan to secure consumer information, follow up on complaints and work with law enforcement to prosecute bad counselors. Otherwise this is a disaster waiting to happen for Georgia consumers.

Amicus Brief in Support of Legislative Prayer

Recently I joined a bipartisan coalition of 23 attorneys general in filing an amicus brief with the United States Supreme Court supporting the long tradition of legislative prayer. The friend-of-the-court brief, filed in the case of Town of Greece N.Y. v. Galloway, asks that the Court overturn a lower court ruling that legislative prayer at the beginning of a government assembly violates the Establishment Clause.

The legality of legislative prayer is a major Constitutional question before the United States Supreme Court, which will impact every government in Georgia. Our Nation has a centuries-long tradition of balancing religious freedom and public prayer, and I believe that tradition must be protected.

The brief also argues that guidance is needed from the Court to clarify that legislative prayer is permissible without requiring screening for sectarian references. Nearly 30 years ago, the Supreme Court upheld the practice of opening legislative sessions with prayer in Marsh v. Chambers, 463 U.S. 783, 792 (1983). In that case, the Court based its holding on the “unambiguous and unbroken history” of legislative prayer dating back to the First Congress.

Since then, several rulings from lower courts have reached conflicting conclusions about the precedent set by Marsh. The ambiguity surrounding legislative prayers has led to costly litigation for all levels of government.

Georgia Recovers $540K from Wyeth Pharmaceutical Settlement

Georgia recovered more than $540,000 after joining other states and the federal government in a $491 million dollar settlement to resolve civil and criminal allegations that Wyeth Pharmaceuticals, Inc. (Wyeth), a Delaware corporation headquartered in Collegeville, Pa., promoted the sale and use of Rapamune for uses for which it had not been approved by the Federal Drug Administration (FDA).

The FDA-approved kidney transplant drug is prescribed to prevent the body from rejecting a transplanted donor organ. The investigation resulted from qui tam actions filed in the United States District Courts for the Eastern District of Pennsylvania and the Western District of Oklahoma under the federal False Claims Act and various state false claims statutes.

The complaints alleged that Wyeth knowingly promoted the sale and use of Rapamune for use in connection with solid organ transplant patients other than kidney transplant patients and in treatment regimens with transplant patients who used another immunosuppressant drug before using Rapamune and who did not receive Rapamune at or around the time of a kidney transplant.

Wyeth has agreed to pay the states and the federal government $257.4 million in civil damages and penalties to resolve the civil allegations of off label marketing of Rapamune.

Protecting Georgia Consumers from Illegal Payday Lenders

In late July, I filed a lawsuit in Fulton County Superior Court against Martin A. Webb, Western Sky Financial, LLC (Western Sky) and CashCall, Inc. demanding that the payday lenders immediately cease doing business in Georgia.

The suit alleges that the companies make illegal payday loans in Georgia through websites that they operate. The Pay Day Lending Act, a Georgia law, specifically prohibits the making of payday loans, including the making of payday loans to Georgia residents through the Internet (O.C.G.A. § l6-17-1, et seq). Although the defendants are not licensed to lend in Georgia, they still make high interest payday loans to Georgia consumers over the Internet. These loans carry crushing interest rates of up to 340 percent and trap the borrower in a cycle of debt.

My office made numerous attempts to resolve the issue outside of court. In May 2012, despite agreeing to stop making payday loans in Georgia and to add a disclaimer to its website stating that the payday loans are not available to Georgia residents, Western Sky has continued to offer and make such loans in Georgia and has not responded to on the matter.

The defendants’ disregard for the law of this State will not be tolerated. I have taken the necessary legal action to enforce the law and ensure that these unscrupulous lenders will no longer be able to exploit Georgia consumers.

Supporting Right to Use Criminal Background Checks

I have joined eight other attorneys general in a letter to the U.S. Equal Opportunity Commission (EEOC) to express concern over two recent lawsuits filed by the commission dealing with employers’ use of criminal background checks. The EEOC, for the first time, claims that the employers’ use of criminal background checks constitutes unlawful discrimination against potential employees under federal law.

In the letter, we say that the lawsuits, filed against Dollar General and BMW Manufacturing Co. LLC, are “misguided and a quintessential example of gross federal overreach.” The letter urges Commission Chair Jacqueline Berrien and the other four Commissioners to reconsider the lawsuits. The attorneys general also ask that the EEOC revise the agency guidance driving the lawsuits, which asserts that using generally applicable criminal background checks as a bright-line screening tool in the hiring process will often violate Title VII of the Civil Rights Act of 1964.

The EEOC has gone well beyond the confines of the law. Businesses may decide for a variety of legitimate reasons that it is not in their best interest to hire people who have been convicted of certain — or any — crimes. An employer may have any number of business-driven reasons for not wanting to hire individuals who have been convicted of rape, assault, child abuse, weapons violations, or murder—all crimes specifically mentioned in the complaints.

At a time when Georgia businesses are already saddled with a multitude of burdensome regulations, the last thing we need is another federal regulation imposing even more unnecessary requirements.

Other states to sign on to the letter were Alabama, Colorado, Kansas, Montana, Nebraska, South Carolina, West Virginia and Utah.

Combatting Child Sex Trafficking on the Internet

In July, I joined a bi-partisan national coalition of 49 attorneys general calling on Congress to amend federal law to help States fight prostitution and child sex trafficking. In a letter to key members of Congress, the attorneys general asked Congress to amend the Communications Decency Act to restore criminal jurisdiction to State and local prosecutors.

The Communications Decency Act of 1996 (CDA) was drafted when the internet was in its infancy. The original purpose of the Act was to protect children from accessing indecent material online, but courts have interpreted certain provisions of the Act in a way that provides online classified ad sites immunity from State prosecution. Under this protection, sites such as Backpage.com have knowingly created an online marketplace for prostitution and, consequently, child sex trafficking. Local prosecutors report that prostitution solicitations have largely moved online. Such sites are extremely lucrative. Backpage.com, for example, generates an estimated $3 million to $4 million per month in revenue.

The proposed amendment is narrowly crafted to combat this conduct. Absent interstate travel, federal property or the involvement of a minor, prostitution is not a federal crime. The proposal would remove a loophole that had denied state and local jurisdiction over online classified ads, including those for prostitution and child sex trafficking.

Traffickers have taken advantage of loopholes in the current law to sexually exploit children on the internet. A majority of the victims recovered by the Georgia Bureau of Investigation, for example, have been advertised on Backpage.com at some point. As the tactics used by traffickers evolve, we must ensure that the law is modernized to effectively combat this heinous crime.

By maintaining civil immunity, mainstream online content providers will not be affected, and innovation on the internet will be preserved. If the amendment is enacted, state and local governments will have the ability to criminally investigate whether these sites and their management are culpable for aiding and abetting prostitution or other similar crimes.

EPA Needs to Reveal Details of Secret Settlement with Special Interest Groups

Along with 11 attorneys general, I have filed a lawsuit in federal court against the Environmental Protection Agency (EPA) seeking to force the agency to follow the law and disclose documents related to its “sue and settle” tactics.

“Sue and settle” allows the EPA to push its agenda on the American people through sweetheart deals with special interest groups. We deserve a government that conducts business in a transparent manner, especially when its actions have a direct impact on all of us. The refusal to produce documents related to these backdoor settlements is the latest disregard for the rule of law by the EPA.

The EPA utilizes “sue and settle” to achieve environmental policies that would otherwise be blocked by the transparent rulemaking process that is a vital part of a representative democracy. In essence, outside advocacy groups notify agencies of their intent to sue and then conduct closed-door negotiations.

During these settlement talks, special interest groups dictate the agency’s policy priorities and funding choices, ultimately resulting in legally binding court-approved settlements. In the process, States and other affected parties are sidelined from weighing in on policy decisions that directly impact them. In fact, affected parties often have no knowledge of the negotiations until they have become legally binding.
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Recent Media Coverage

AJC: Man Accused of bilking $500k from Medicaid
WXIA: Olens Files Suit over Illegal Payday Loans
Marietta Daily Journal: Olens Joins Effort for more Local Authority in Prosecuting Child Sex Cases
Cherokee Tribune: AGs Deserve Green Light to go After Websites
Atlanta Business Chronicle: Olens Steps Into Medicaid Fraud Lawsuit