THE INAUGURAL EDITION
legalBrief the
Spring 2021
THE MAGAZINE OF THE SUFFOLK COUNTY BAR ASSOCIATION
Key Issues in the Avoidance of Medical Debt MOLST is Not an Advance Directive on Steroids Bankruptcy, HIPAA and Issues with Medical Privacy
Attorneys A Guide to Help
Navigate our Complex Health Care Systems
COVID-19
• Resident Rights • Effect on Property Taxes
PRESIDENT HON. DERRICK J. ROBINSON’S MESSAGE
A Path Forward Through Diversity
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espite the ravages of the COVID-19 pandemic, gin, religion, age, women, lesbians, gays, bisexual time marches on. We are entering into a time and transgender individuals, persons with disabilities, of renewal, regeneration, and hope for the fu- and others. We are a richer, more robust, and more ture. We are trying to get vaccinated and take care adaptable Association because of diversity and inclusion. of our loved ones. The term "diversity" generally represents both diThe Suffolk County Bar Association has also embarked upon a new era and focus on planning and versity and inclusion. We can promote and advance the full and equal participation of attorneys of preparing for the future. So much is going on color and other diverse attorneys in the in the Association, and accordingly, we SCBA through education, research, and must plan our work and work our plan. fostering involvement and leadership We have our Annual Meeting scheddevelopment. uled for May 3, 2021, and the inThe Planning Committee has stallation of our new President, strategically planned the Diversity Officers, Board of Directors and Symposium to have just that type the Dean of the Academy of Law, of impact with speakers, moderaon June 3, 2021. We have suctors, attendees, and program concessfully launched our on-line tent that appeal to diverse newspaper, The Suffolk Lawyer, to communities. With the able assisgreat acclaim. We are also so extance of Adrienne Williams, a SCBA cited about the Association's new member, we are collaborating with the glossy magazine, the legalBrief, which Franklin H. Williams Commission, of has its inaugural publication with this President which she is a member. edition. The magazine is a special ediThe Franklin Commission was estion devoted to updates on health law, Hon. Derrick J. Robinson rules, regulations, and procedures. Each of these ac- tablished in 1991 as an independent standing Comtivities and publications takes us boldly into the fu- mission of the New York State Court System that, ture, under our officers and directors' steady among other functions, focuses on coordinating conferences, seminars on issues of diversity and race leadership. Another essential upcoming program of the SCBA, within the courts. It is the most visible program the Suffolk Academy of Law, and the Franklin H. throughout the court system to address racial bias Williams Commission is our Diversity Symposium and treatment of the under-represented. This continuing dialog is purposeful because, as I presentation – A Path Forward Through Diversity, on April 30, 2021. While this year's Law Day's theme is see it, it is our responsibility and part of the ongoing Advancing the Rule of Law, the Symposium is part of work of our Association to increase diversity in our our long-standing commitment to diversity and inclu- membership, our leadership and build partnerships sion. The Symposium is our practical effort to value, to advance diversity and inclusion. To that end, the leverage, and communicate the importance of diver- Planning Committee, working on the Symposium, has confirmed the attendance of the Hon. Rowan Wilson, sity in our membership and society. Diversity is a serious consideration for the SCBA's Associate Justice of the New York Court of Appeals, leadership. We are committed to achieving diversity to deliver the keynote address. We have partnered with Dr. Betty Campbell, Comin all of our activities, including committee membership and leadership positions. One of my goals is to missioner of Jurors in Westchester County, to address maximize participation by our diverse and capable how to work toward increased diversity in the jury membership so that the SCBA can achieve new levels pool in our court system. We will present meaningful speakers on the diversity of Corporate and Not-forof excellence. A more diverse and inclusive legal profession is a Profit Boards. The Suffolk County Sheriff, Dr. Errol D. worthy goal. Diversity is an inclusive concept encom- Toulon, Jr., will address diversity in law enforcement passing racial minorities, ethnic origin, national ori(Continued on page 31) www.scba.org • The Official Publication of the Suffolk County Bar Association • the legalBrief 3
Calendar of Association Meetings and Events All meetings are held at the Suffolk County Bar Association Bar Center, unless otherwise specified. Please be aware that dates, times and locations may be changed because of conditions beyond our control. Please check the SCBA website (scba.org) for any changes/additions or deletions which may occur. For any questions call: 631-234-5511
APRIL 2021 1 Thurs 5 Mon 6 Tues 7 Wed 8 Thurs 12 Mon 14 Wed 15 Thurs 21 Wed 22 Thurs 28 Wed
Intellectual Property Law Committee, 6:00 p.m., ZOOM Federal Court Committee, 1:00 p.m., ZOOM. Executive Committee, 5:30 p.m., Board Room Military & Veterans Affairs Committee, 1:00 p.m., ZOOM. Appellate Practice Committee, 5:30 p.m., ZOOM Membership Services Committee, 1:00 p.m., ZOOM. Transactional & Corporate Law Committee, 5:00 p.m., ZOOM Taxation Law Committee, 5:00 p.m., ZOOM. Surrogates’ Court Committee, 6:00 p.m., ZOOM Newly Admitted Attorneys Committee, 12:30 p.m. ZOOM Board of Directors, 5:30 p.m., ZOOM Education Law Committee, 12:30 p.m., ZOOM Animal Law Committee, 8:30 a.m., ZOOM Professional Ethics & Civility Committee, 5:30 p.m., ZOOM Condemnation and Tax Certiorari Committee, 5:30 p.m., ZOOM Elder Law & Estate Planning Committee, 1:00 p.m., ZOOM
Write for the
SCBA D
id you ever wonder how you could get involved in your bar association’s publications? Do you have a great idea for an article or believe your colleagues would benefit from information you’ve recently learned? Or do you just enjoy writing? You too can write for The Suffolk Lawyer and The Legal Brief. Writing is open to all members and doing so is encouraged. The Suffolk Lawyer and The Legal Brief are reflections of the fine members that belong to the Suffolk County Bar Association. Why not get involved? For additional information please contact Jane LaCova at jane@scba.org or call 631-2345511 ext.231.
MAY 2021 3 Mon 4 Tues 5 Wed
6 Thurs 10 Mon 12 Wed 13 Thur 17 Mon 18 Tues 19 Wed 20 Thurs
SCBA Annual Meeting, 6:00 p.m., ZOOM HYBRID Military & Veterans Affairs Committee, 1:00 p.m., ZOOM. Appellate Practice Committee, 5:30 p.m., ZOOM Membership Services Committee, 1:00 p.m., ZOOM. Federal Court Committee, 1:00 p.m., ZOOM. Transactional & Corporate Law Committee, 5:00 p.m., ZOOM Intellectual Property Law Committee, 6:00 p.m., ZOOM Newly Admitted Attorneys Committee, 12:30 p.m. ZOOM. Executive Committee, 5:30 p.m., Board Room Education Law Committee, 12:30 p.m., ZOOM Surrogates’ Court Committee, 6:00 p.m., ZOOM Board of Directors, 5:30 p.m., ZOOM Elder Law & Estate Planning Committee, 1:00 p.m., ZOOM Professional Ethics & Civility Committee, 5:30 p.m., ZOOM Animal Law Committee, 8:30 a.m., ZOOM Condemnation and Tax Certiorari Committee, 5:30 p.m., ZOOM
JUNE 2021 3 Thur
Annual SCBA Installation, 6:00 p.m., Nissequogue County Club, St. James 7 Mon Executive Committee, 5:30 p.m., Board Room 8 Tues Military & Veterans Affairs Committee, 1:00 p.m., ZOOM 14 Monday Newly Admitted Attorneys Committee, 12:30 p.m. ZOOM Board of Directors, 5:30 p.m., ZOOM
4 the legalBrief • The Official Publication of the Suffolk County Bar Association • www.scba.org
HIGHLIGHTS... Among Us/ On the Move .................................................... 7 MOLST Is Not An advance Directive on Steroids ............12–13 9/11 Victim Compensation Fund ........................................15 Understanding Advanced Directive Language ..................... 16 Key Issues in the Avoidance of Medical Debt ......................19
COVID–19
Truths and Falsehoods About Heart Risk ............................ 27
Resident Rights ............. 20 Effects on Property Tax .. 21
Advance Planning Makes Sense .........................................22
Thank YouChristin! The Suffolk County Bar Association would like to acknowledge the efforts of Christin Paglen as Guest Editor of the premier issue of the Legal Brief. Christin’s efforts were unsurpassed, and without them the publication of this edition would not be possible.
Suffolk County Bar Association
the
legalBrief Published by
560 Wheeler Road • Hauppauge, NY 11788-4357 Phone (631) 234-5511 • Fax (631) 234-5899 E-mail: scba@scba.org
SCBA BOARD OF DIRECTORS Hon. Derrick J. Robinson..............................................President Daniel J. Tambasco..............................................President Elect Vincent J. Messina, Jr.............First Vice President, Legal Editor Cornell V. Bouse... Second Vice President, Deputy Legal Editor Patrick McCormick.......................................................Treasurer Hon. John J. Leo........................................................... Secretary Andrea A, Amoa.................................................... Director (‘21) Hon. Caren Loguercio........................................... Director (‘21) Theresa A. Mari.....................................................Director (‘21) Peter R. McGreevy................................................ Director (‘21) Jeffery S. Horn.......................................................Director (‘22) Paul Devlin............................................................ Director (‘22) Peter D. Tamsen.....................................................Director (‘22) Cynthia S. Vargas...................................................Director (‘22) Jarrett M. Behar..................................................... Director (‘23) Catherine E. Miller................................................ Director (‘23) David R. Okrent.....................................................Director (‘23) Daniel A. Russo.....................................................Director (‘23) Patricia M. Meisenheimer.............. Past President Director (‘21) Justin M. Block.............................. Past President Director (‘22) Lynn Poster-Zimmerman............... Past President Director (‘23) Sarah Jane LaCova........................................ Executive Director
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Frank C. Trotta, Publisher Tim Edwards, Executive Editor Gary P. Joyce, Editor Gregory A. Jones, Art Director For Advertising 631-286-4566 SEND EDITORIAL COPY AND LISTINGS FOR AMONG US TO: editor@scba.org the
legalBrief The Suffolk Lawyer and the legalBrief are the Official Publications of the Suffolk County Bar Association. The Suffolk Lawyer (six times per year) and the legalBrief (three times per year) are published by Fire News, 146 South Country Road, Suite 7, Bellport, NY 11713, under the auspices of the Suffolk County Bar Association. The articles published herein are for informational purposes only. They do not reflect the opinions, beliefs and viewpoints of The Suffolk County Bar Association nor does The Suffolk County Bar Association make any representation as to their accuracy. Advertising contained herein has not been reviewed or approved by The Suffolk County Bar Association. Advertising content does not reflect the opinion or views of The Suffolk County Bar Association.
www.scba.org • The Official Publication of the Suffolk County Bar Association • the legalBrief 5
P
ursuant to Article VI Sec. 2(6) of the SCBA’s Bylaws, the Nominating Committee has submitted the following report of names of the candidates to be placed in nomination for the election to be held at the Annual Meeting which report has been submitted in writing to the Secretary of the SCBA Hon. John J. Leo, who hereby notifies the members of the Suffolk County Bar Association.
AMONGUS
See the SCBA’s new Administrative Assistant Ms. Faith Hallock, the daughter of SCBA staff member Andrea Hallock and her husband Rob.
SCBA member Karen Lee Dunne and Richard C. Kesnig just became proud new grandparents to Beau Patrick Murphy, who was born on February 9th weighing in at seven pounds, nine ounces, 20.5 inches.
SEND INFO TO: jane@scba.org
The Annual Meeting date for the Election of the Slate is Monday, May 3, 2021: Congratulations to the SCBA’s new slate for the 2021-2022 Administrative Year: President Elect Vincent J. Messina, Jr. First Vice President Cornell V. Bouse Second Vice President Patrick McCormick Treasurer Hon. John J. Leo Secretary Robin S. Abramowitz Directors (terms expiring 2024) Diane C. Carroll Hon. Chris Ann Kelley Matthew J. Martinez Jason A. Stern Nominating Committee (terms expiring 2024) Hon. Caren Loguercio Hon. Derrick J. Robinson Arthur E. Shulman
ontheMOVE J
oseph A. Quatela, Esq. managing partner of Quatela Chimeri PLLC, with offices in Hauppauge and Garden City, is proud to announce Nicole J. Brodsky has been named partner to the firm, concentrating in matrimonial and family law. With the firm since 2013, Ms. Brodsky is honored in the legal community being named a New York Super Lawyers “Rising Star,” and recipient of “Celebrate Long Island’s Young Professionals” ’30 under 30’ Award from the Chamber of Commerce.
J
oseph A. Quatela, Esq. is also proud to announce Alexander E. Sendrowitz has been named partner to the firm, concentrating in the areas of general civil litigation, state and federal court practice, business and commercial litigation and municipal defense. Mr. Sendrowitz represents the firm’s business and commercial clients on a broad range of transactional and litigation matters. Upon receiving his Juris Doctor from Hofstra University School of Law in 2015, he joined the firm as
an associate and earned the role of partner with his extensive knowledge, multidisciplinary nature and commitment to clients.
C
ongratulations to SCBA long time member Elliott M. Portman, Portman Law Group, P.C. who was re-elected as Vice President of the New York State Creditor’s Bar Association (NYSCBA) for a two-year term. Submit your movers to: jane@scba.org
www.scba.org • The Official Publication of the Suffolk County Bar Association • the legalBrief 7
From Little Acorns or For Want of a Nail... By James G. Fouassier
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while back a story broke in the Chicago Tribune about a man who was locked up for not paying his hospital bill. The article constituted the proverbial pebble rolling downhill; an avalanche followed. The end result, at least as of this date, is legislation adopted by New York and many other states, as well as at the federal level, to protect patients against what colloquially are referred to as “surprise” and “emergency” medical bills. The Suffolk Lawyer has published several of my articles on the details of the different legislation, to which I respectfully refer the interested reader for the sake of keeping this one within editorial limits. Suffice it to recite the gist. Health care providers must advise patients if they participate in the patient’s health insurance or plan network, meaning that they are contractually bound to accept rates of payment previously negotiated with those companies and plans. If without the patient’s prior consent the network provider secures the services of a non-contracted provider to perform any of the required services (network hospital and non-network anesthesiologist is the classic example) the patient is held harmless against any balance due between the actual billing submitted by the non-contracted provider (that’s the “surprise”) and what the plan paid, except for standard patient shares, which would be whatever the patient would have had to pay if the other provider were in network. In the case of “emergency” bills, since there obviously can be no meaningful disclosure (because the patient has no choice but to accept the providers assigned by the hospital or lead clinician) the patient is held harmless from anything other than the “in network” out of pocket, period. The patient is taken out of the fight between the provider and the health insurer or health plan, and several similar independent resolution processes are established to determine whether the payment made is fair and reasonable. Back to the rolling stone. The patient in question was uninsured. Although the hospital had no formal financial as(Continued on page 27 )
James Fouassier Associate Administrator, Department of Managed Care, Stony Brook University Hospital
James is Former Co-Chair of the Association’s Health and Hospital Law Committee. His opinions are his own. He may be reached at: james.fouassier@stonybrookmedicine.edu
www.scba.org • the legalBrief 9
Direct Access to Physical Therapy
AUTHORS
By Christin Paglen, Esq. and Dr. Joseph Hayes
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ew York passed The Consumer Access to Physical Therapy more than 15 years ago. The law allows people direct access to the services of an experienced licensed physical therapist for evaluation and treatment for up to (a) 10 visits or (b) 30 days (whichever comes first) without a referral or prescription from a medical doctor. New Yorkers are surprised to learn they can pursue physical therapy directly. The purpose of this article is to broaden knowledge of the law since too few people are aware of the law’s expanded medical benefits. For people who have private health insurance there is the possibility that physical therapy treatment without a referral from a physician may not be paid for by their plan — so it is always good practice to coordinate benefits with your carrier before proceeding to receive any medical services. Medicare, however, does not require patients to obtain a physician referral for PT services. It does require physicians to certify the physical therapists’ plan of care within 30 days of the initial therapy visit. The plan of care must include, at a minimum, a diagnosis, longterm treatment goals and the type, quantity, duration, and frequency of therapy services. Direct access makes physical therapy more accessible to those in need. Health care systems in other countries (and the US military) have a long history of direct access, with evidence supporting both safety and efficacy. The current evidence reports similar findings in the civilian US health care system. Most of the research involves direct access for patients with spine related musculoskeletal disorders. The authors found that “direct access to physical therapy is more cost effective, results in fewer visits than physician first access, in the US, with greater functional improvement.” There is also evidence that direct access patients are at minimal to no risk for negligent care. Other criticisms of direct access include potential over utilization of services, increased costs and inappropriate care. Researchers found that PTs, in the United Kingdom, who rely on effective evidence-based practice can reduce costs; improve clinical outcomes; and decrease use of prescription medications, MRI and injections. An additional benefit is reducing delays. Delays result in higher costs, decreased functional outcomes and patient frustration. Direct access allows Physical Therapists to function autonomously — improving patient outcomes and lower overall healthcare costs.
Christin Paglen, Esq. Of Counsel to the law firm Messina Perillo & Hill Christin was a Vice President with Northwell Health. She and Dr. Hayes are colleagues at Touro College School of Health Sciences. She is the Co-Director of the PA Masters' Completion program and co-chairs SCBA’s Health Law Committee.
Dr. Joseph Hayes New York State licensed Physical Therapist Dr. Hayes is a graduate of The University of Pennsylvania and Touro College. He completed his Doctorate in Physical Therapy at The Massachusetts General Hospital Institute of Health Professions. He is board certified in orthopedics by the American Physical Therapy Association.
www.scba.org • The Official Publication of the Suffolk County Bar Association • the legalBrief 11
MOLST is Not an Advance Directive on Steroids Patricia Bomba, MD, MACP, FRCP, NY MOLST and eMOLST Program Director, 2001-present
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dvance care planning is a process that supports all adults 18 years of age and older in clarifying and sharing personal values and life goals, as well as choosing and preparing another trusted person or persons to make medical decisions in the event the person can no longer make his or her own decisions. The goal of advance care planning is to help ensure that people receive medical care that is consistent with their values and goals. The program Community Conversations on Compassionate Care combines storytelling and Five Easy Steps to help people through the process. Advance directives are completed at the end of the process.
Advance Directives The New York Health Care Proxy (HCP) is the key advance directive and ensures a health care agent (HCA) may make decisions for the patient determined to lack capacity. The HCP must include a statement indicating “my HCA knows wishes about artificial hydration and nutrition” in order to empower the HCA to make these decisions. Special requirements exist for proper completion of a HCP for an individual with intellectual or developmental disabilities. In the absence of a HCP, the decision falls to a surrogate identified in Family Health Care Decisions Act
(FHCDA). This may be an individual that the patient would not have chosen to make medical decisions for them. Both HCAs and surrogates are required to make decisions according to the patient’s known wishes or best interests. A Living Will outlines preferences for life-sustaining treatment, if a patient is in a terminal or irreversible condition. While living wills provide “clear and convincing evidence” and are recognized under case law, living wills cannot be followed in an emergency and are difficult to interpret in the acute care setting due to the coexistence of a terminal illness and potentially reversible acute illness. For that reason, MOLST was created. A living will is useful for individuals who have no one, not even a close friend, to appoint as a HCA.
MOLST MOLST is a set of medical orders that defines lifesustaining treatment the patient wants to receive or avoid today. MOLST is not for everyone. Rather, MOLST is appropriate for patients with advanced illness, including advanced frailty who might die within the next year; reside in a nursing home or receive long term care services in the home or assisted living; or individuals, typically of advanced age, who want to avoid or receive any or all life-sustaining treatment.
12 the legalBrief • The Official Publication of the Suffolk County Bar Association • www.scba.org
MOLST is created after a thoughtful discussion between the patient (or HCA or surrogate) with a physician, NP or PA, using the 8Step MOLST Protocol that supports the voice of the patient and ensures shared decision-making. Medical orders must be followed by all health care professionals in all settings. New York’s public health laws (PHL) integrate the ethical framework for making such decisions and provide broad patient and provider protections under HCP law and FHCDA, as well as the process outlined §SCPA 1750-b for individuals with intellectual and developmental disabilities (I/DD) who lack capacity. Physicians, NPs and PAs have authority and accountability for MOLST for the general population; but only a physician has authority for MOLST decisions for individuals with I/DD who lack capacity. The NY DOH MOLST Checklists and OPWDD Checklist outline PHL.
eMOLST eMOLST is a secure website, N Ye M O L S Tr e g i s t r y. c o m , t h a t serves as a statewide registry of eMOLST forms and a standardized online completion system. eMOLST combines the 8-Step MOLST Protocol, the DOH and OPWDD MOLST Checklists. Integration with EMRs is available but not required. eMOLST is a risk management tool that improves quality, patient safety, accuracy, and provides access to MOLST medical orders and a copy of the discussion in an emergency, as well as, promotes coordinated, person-centered care by improving workflow within and across facilities. Providers can print a PDF of MOLST form. The value of advance care planning has been demonstrated during the COVID19 pandemic.
Personal Recommendation As a board-certified geriatrician,
trained, licensed and practicing in New York for more than forty years, the recent emergence of litigation for providing unwanted lifesustaining treatment is no surprise. For decades, all life-sustaining treatment was provided, as death viewed as failure could potentially result in a lawsuit. I anticipate more litigation as baby boomers are avid consumers of health information, recognize inadequacies in our health care delivery system, are proactive setting expectations with their physician, NP or PA, and serve as their own self advocates. As a knowledgeable baby boomer physician, I know my rights. I have a Health Care Proxy and annual family discussions for the past 30 years. When I am appropriate for a thoughtful MOLST discussion, I will speak with my physician and include my health care agent and family virtually. I will insist my physician 1) complete my MOLST in NYeMOLSTregistry.com explaining eMOLST is a risk management tool, and 2) include my personal statement in ‘Other Instructions’ section MOLST form, “If my MOLST orders are not followed, my attorney will sue for battery, pain and suffering, and make sure the insurance company does not pay for unwanted treatment.”
Patricia Bomba MD, MACP, FRCP, NY MOLST & eMOLST Profram Director
Patricia is a nationally & internationally recognized palliative care/end-oflife expert, currently serves as Senior Medical Director, Geriatrics and Palliative Care for Excellus BlueCross BlueShield (BCBS).
10 Tips on MOLST 1. MOLST is not a traditional advance directive, like the NY Health Care Proxy. 2. MOLST is a set of medical orders that reflects treatment the patient wishes to receive today and must be honored by all health care professionals in all settings. 3. MOLST is voluntary and should be offered to patients who are appropriate. a. Patients whose physician, NP or PA would not be surprised if they die in the next year b. Patients who live in a nursing home or receive long-term care services at home or assisted living c. Patients who want to avoid or receive any or all life-sustaining treatment today d. Patients who have one or more advanced chronic conditions or a new diagnosis with a poor prognosis e. Patients who have had two or more unplanned hospital admissions in the last 12 months, coupled with increasing frailty, decreasing functionality, progressive weight loss or lack of social support 4. MOLST is not for everyone. a. Healthy people are not appropriate for MOLST, should complete a Health Care Proxy and have a discussion with family/loved ones about what matters most. b. Patients who have a chronic condition or multiple chronic conditions, but have a long-life expectancy are not appropriate for MOLST. c. Patients who are receiving post-acute care in a skilled nursing facility should be screened, as they may or may not be appropriate for MOLST. 5. MOLST is created after a thoughtful MOLST discussion(s) using the 8-Step MOLST Protocol and the appropriate DOH or OPWDD MOLST Checklist. 6. MOLST is based on the patient’s or decision maker’s understanding of the patient’s current health status, prognosis, and goals for care 7. A thoughtful MOLST discussion emphasizes shared medical decision-making and helps the patient understand what can and cannot be accomplished. 8. MOLST represents “clear and convincing evidence” of patient’s preferences for withholding life-sustaining treatment. If the patient loses capacity to make MOLST decisions, the decisions must be made based on the patient’s values, beliefs and goals for care – not what matters most to the Health Care Agent or Surrogate. a. If the patient loses the ability to make MOLST decisions and the patient has already made decisions to withhold certain life-sustaining treatment, e.g. Do Not Resuscitate (DNR) and Do Not Intubate (DNI), the health care agent or surrogate cannot undo the patient’s decision. b. If the patient loses the ability to make MOLST decisions and the patient has requested full treatment, the health care agent or surrogate can make a decision to withhold and/or withdraw other life-sustaining treatment on the MOLST for which the patient requested full treatment, as full treatment represents the standard of care. 9. eMOLST is a secure website that serves as a statewide registry of eMOLST forms and ensures MOLST is completed correctly and in accordance with PHL 10. For more information, visit MOLST.org and CompassionAndSupport.org. View MOLST and eMOLST videos in playlists on the CompassionAndSupportYouTubeChannel.
www.scba.org • The Official Publication of the Suffolk County Bar Association • the legalBrief 13
9/11 Victim Compensation Fund Upcoming “Last Chance” Deadline - July 29, 2021 By Troy s the nation approaches the tragic 20th anniversary of September 11th, practitioners need to know of a crucial 9/11 Victim Compensation Fund (VCF) deadline, coming up on July 29, 2021, which will impact the families of deceased 9/11 victims. On July 29, 2019, the President signed into law the “Never Forget the Heroes: James Zadroga, Ray Pfeifer, and Luis Alvarez Permanent Authorization of the September 11th Victim Compensation Fund Act.” The Act extends the Victim Compensation Fund’s claim “Filing Deadline” from Dec. 18, 2020, to Oct. 1, 2090, and appropriates enough funds as may be necessary to pay all approved claims. After the Act was passed, the VCF’s Special Master gave many families who lost a loved one to cancer or other 9/11-caused condition a second and “last chance” to register a claim with the VCF: July 29, 2021. Two main groups of claims are impacted by the strict July 29, 2021 Registration deadline: 1. Claims related to deaths prior to July 29, 2019.
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Rosasco If an individual was present in Lower Manhattan any time between 9/11 and May 30, 2002 and died due to cancer or any other potential 9/11-related physical health disease or condition before July 29, 2019, a surviving member (or their attorney) is required to register with the VCF by July 29, 2021. 2. Individuals who are in the World Trade Center Health Program (WTCHP) who had a 9/11 cancer or other physical condition that was “certified” by the WTCHP before July 29, 2019 are required to register a claim with the VCF by July 29, 2021. Please remem(Continued on page 28)
Troy Rosasco Founding Partner 9/11 Law Firm of Hansen & Rosasco, LLP
Troy Rosasco is a Founding Partner of the 9/11 Law Firm of Hansen & Rosasco, LLP in Islandia. He has been representing 9/11 victims and families since 2001. He can be reached at 631-812-5666.
www.scba.org • The Official Publication of the Suffolk County Bar Association • the legalBrief 15
Understanding Advanced Directive Language By David Okrent
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he law is filled with vocabulary that makes decisionmaking by lay people complex. The purpose of this article is to help lawyers (and their clients) more clearly understand the purpose of what New York State calls “advance directives” relating to health care. Additionally, the goal is to help people understand why you should decide today how you would want things handled in the event you are unable to speak for yourself in the future. The money spent with an attorney can help you and your family avoid future problems. During the COVID-19 pandemic, the legal field has experienced first-hand what happens when people feel they are too young to “think about the future.” You are never too young—and this
includes students who are heading Sustaining and the Living Will (known as a “MOLST”). This article to college. As for attorneys who practice in will focus on the Health Care Proxy other fields—this article is for you and Living Will. The first question is: if you canas well! Health care advanced directives not speak for yourself is there are a series of legal documents by someone you trust to make medwhich you may make provisions for ical decisions for you? This is a sefuture health care decisions. A rious question and for most people COVID related stroke is one exam(Continued on page 28) ple of a health care event that may prevent you from communicating clearly about your desires. For young people, too much alcohol can render them incapable of making their decisions and at 18 their parents can no longer make decisions for them. In New York, there are three Principal owner of The Law Offices of types of advanced directives: David R. Okrent. Health Care Proxy and Living Will and may also include a Do Not Re- Former IRS Agent, CPA Attorney, suscitate Order (known as a Co-Chair of the Suffolk County Bar Association. OkrentLaw.com “DNR”) or a “Medical Order Life
David R. Okrent,Esq.,CPA
16 the legalBrief • The Official Publication of the Suffolk County Bar Association • www.scba.org
Attorney Wellness in a Nutshell By Sheryl L. Randazzo
T
he term “Attorney wellness” has become a catch phrase for so many organizations, movements and products on the market that, sadly, many of us are starting to tune them out. As a colleague and a perpetual explorer (albeit, not “expert”) on all things positive and healthy, I ask you vehemently - Please don’t! At the same time, I urge you — by all means — be proactive, selective and reasonable in your quest for wellness. What does “attorney wellness” mean anyway? “Attorney wellness” is no more than similarly careeraligned individuals recognizing that we each have our own personal need to be healthy to effectively perform the specific role we fill as part of our chosen profession. The fact that our profession is such that we can have quite a significant impact on the wellness of others (our clients), adds weight to the importance of our own wellness. You know the air mask analogy – you can’t help anyone until you put on your own? Well, it applies. What constitutes an “air mask” for attorneys? The answers are obvious, though not necessarily easy for professionals so used to operating day-in-day-out in crisis mode for countless clients, often simultaneously.
Common sense, right? Even better, each of these components of attorney wellness are readily within each of our grasp. Most require no money (except food, but you are going to eat anyway, so why not make better choices?) and no special skill. They only require commitment to ourselves to make them happen. For most attorneys, we know and understand what we should do to take better care of ourselves, and we often vow, to ourselves and others, that one day soon we will actually start doing so. I’m here to remind you, and offer you a gentle push, that “one day soon” is now.
In the interest of brevity, here are the biggies, with the most significant “why,” respectively – 1. Eat a healthy diet, because you get out of your body what you put into your body. 2. Stay hydrated, to keep your body functioning smoothly and to prevent dehydration, which is the most common cause of fatigue. 3. Exercise, to reduce stress, give you more energy and improve your overall disposition. 4. Get sufficient sleep – at least eight hours — because your body’s systems and chemicals need that much time to recharge. 5. Get fresh air every day, to strengthen your bones and immune system, improve digestion and blood pressure, clear your lungs and make you happier. 6. Communicate daily, to stay connected, process emotions and prevent isolation.
Sheryl L. Randazzo, Esq. Partner, Randazzo & Randazzo, LLP.
The firm concentrates its practice on the areas of elder law and estate planning/administration. Sheryl is the current Chair of the Town of Huntington Board of Ethics and served as President of the Suffolk County Bar Association (2010-2011). www.scba.org • The Official Publication of the Suffolk County Bar Association • the legalBrief 17
Yes, ERISA Compliance Applies to Health Insurance Plans as Well as Retirement Plans By William J. Rowley
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he Employee Retirement Income Security Act (ERISA) was passed in 1974 and protects retirement assets and other employee benefit plans for all Americans. In addition to retirement plans, all employer-sponsored group insurance plans, such as medical insurance, also fall under ERISA’s protections. From its inception, ERISA has required that certain documents and disclosures pertaining to all group insurance plans be created, maintained, and distributed to employees each year. This applies to all employersponsored group insurance plans, regardless of the employer’s employee count. However, these requirements were not actively enforced by EBSA (The Dept. of Labor) until the Affordable Care Act (ACA) was passed in 2010. EBSA revisited these ERISA requirements and began enforcement to generate fines and penalties to help pay for the ACA’s provisions. The EBSA has over 1,900 employees involved in compliance reviews, and fines were up 72 percent in 2017 to a total of $1.1 billion.
A Summary Plan Description, with all attached notices including a copy of the carrier’s certificates of coverage, is the first thing they will ask for in an audit. In addition, here is a partial list of other documents that are required: • Summary of Material Modification • Notice of Model Exchange • Newborn’s Act Description of Rights • Women’s Health & Cancer Rights Act Notices Have you ever heard of these? About 90 percent of the employers I speak with have no idea what these documents are and are unaware of their responsibility to maintain and distribute them annually. (Continued on page 30)
William J. Rowley Senior Vice-President, Bradley & Parker, Inc.
William specializes in the firm’s employee benefit consulting practice. Reach him directly at 631-650-4004 or via email at wrowley@bradley-parker.com
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Key Issues in the Avoidance of Medical Debt Leslie H. Tayne, Esq
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edical debt occurs when you’re unable to pay your healthcare bills. This can be due to insurance lapse, limitation, or simply a medical debt that isn’t covered. This type of debt can be particularly burdensome for low-income and struggling Americans and those without health insurance. Medical debt is prevalent in the United States. Credit Karma analyzed nearly 20 million members in the U.S. and found that they have a total of $45 billion of medical debt in collections, which averages to about $2,200 of debt per person. A 2019 study showed that approximately 56 percent of all Americans had experienced financial challenges due to medical bills. On top of this, over half of all medical debt ends up in collections. Having this type of debt hanging over your shoulder can be stressful, but you can utilize methods to avoid this type of debt and work to remove medical debt from your life altogether. The simplest way to avoid medical debt is to plan ahead. Even if you have insurance, it’s still possible to find yourself over your head in medical bills if you have a high deductible or if a procedure is not covered. Placing money into a savings account to cover any medical expenses is a great way to reduce your chances of not being able to pay an unexpected medical bill. You’ll want to establish a routine for contributing to this savings account, whether it’s every payday, weekly, or monthly. If you’re eligible for an HSA (health savings account) or FSA (flexible spending account), these are two excellent options to save for medical expenses. Since these are offered through an employer, checking in with the human resources department about your options would be the best way to know what is available. You can also open an HSA outside of your employer if your company does not provide a healthcare savings plan option. If neither medical savings plan is available to you, open a high-yield savings account to contribute and save for these potential issues regularly. Planning for the future is important, but life doesn’t always go according to plan, and medical bills will in-
evitably come up. If you find yourself with a medical bill you cannot pay, first speak to the provider to discuss payment options. The resolution could be as simple as an insurance coding error. You can also reach out to your insurance company to find ways to get the bill covered and paid. It’s not uncommon for hospitals and other providers to offer interest-free and low repayment options, even sometimes as little as $5 or $10 a month to repay medical debt, so be sure to communicate and attempt to work out any bill. Don’t ignore the bill, as doing so could escalate the claim to collections. Suppose you know you’re going to encounter a bill beforehand. In that case, you can negotiate the bill to pay out of pocket and work out a payment plan that will allow you to comfortably pay down your debt without the worry of financial ruin. Keep in mind that when going into a doctor’s office or hospital for a procedure that you ensure all providers take your insurance. It’s not uncommon to find out that one aspect was not covered by insurance which could be anesthesia or other services. Be sure to verify this before you begin and notate in writing that your insurance must cover all aspects of the service. If your medical debt goes to collections, there are things you can still do. You have the right to discuss the matter and ask for a repayment plan. Note that most providers don’t report debt on your credit report, but it can eventually show up on your credit once it goes to collections. As of September 15, (Continued on page 31)
Leslie H. Tayne, Esq. Founder , Managining Director Tayne Law Group, P.C.
Leslie is an award-winning financial attorney and author of Life & Debt, with 20+ years of experience in financial debt solutions.
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Resident Rights in the Age of Covid-19 By Erika S. Verrell
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his past year has resulted in a new milestone regarding the curtailment of personal rights in the name of the common good. Public health mandates have taken precedence over personal liberties in a myriad of ways. But no single population has felt the reduction of personal rights and freedoms as keenly as those residing in long term care facilities. To properly safeguard these rights, we first must understand what resident’s rights are. This article will provide a brief overview of some of the more beleaguered rights of residents currently residing in Adult Care Facilities. Not to be confused with nursing homes, Adult Care facilities, include Adult Homes, Assisted Living programs, and Assisted Living Residences. These models offer limited services of both a personal and sometimes medical nature to residents who are disabled and require limited assistance. Given the institutional nature of the accommodations, clear legal standards have been established regarding what Residents can, and cannot expect from the facility. Whether or not the individual facilities meet expectations, unfortunately, varies greatly. At first glance, most “resident rights” seem straightforward, but virtually all of them can be, even with the best intentions, violated by the Facility. During the past year, facilities have legally curtailed certain civil rights (i), Residents have been occasionally restrained in their rooms (x), and the right to privacy in their rooms has been diminished, (vii), all in the name of “public health and safety.” Likewise, the right to join with other Residents to work for improvements (v), the right to confidential treatment of personal, and health records (viii),
and the right to be permitted to leave and return to the facility at reasonable hours (xii), have been curtailed due to COVID19 mandates. But COVID19 aside, resident’s rights are often thoughtlessly violated, in a genuine effort to “help” the Resident. A common example of this benign disregard of regulations often involves a Resident who has some mild capacity issues. They routinely receive important time sensitive documents regarding their benefits, and the Administration opens their mail before giving it to the Resident, so that the case manager knows what action may need to be taken. This is a clear violation if it is done without the express permission of the Resident, but it is, arguably, done “for the good” of the Resident. Another common violation occurs when a resident who perhaps has control or substance abuse issues requests their entire PNA (personal needs account) money on the first of the month. The Home decides arbitrarily, to only remit a small sum per week so that the individual will not be insolvent within a few days, or spend the money on addictive substances. (Continued on page 31)
Erika S.Verrill,Esq. Attorney-In-Charge Adult Care Facility Project, Nassau/Suffolk Law Services, Inc.
You can reach Erika at (631)232-2400 x3362 everrill@nsls.legal
10 Tips for Residents and Family 1. Read the Admission agreement. If necessary, consult with a lawyer. 2. Visit the facility beforehand, preferable at a mealtime 3. Discuss your medical needs and the arrangements for them ahead of time. 4. Ask about any specific dietary restriction accommodations. 5. Understand the visiting policy. 6. Ask about parking at the facility if you have a vehicle. 7. Make sure your financial affairs are in order before you go to the facility. 8. Understand the fee structure and anticipate declining health. Don’t spend out before you age out! 9. Ask if there is a locked drawer/box for valuables. 10. Do your research. Due to COVID19 inspections were not conducted in large number in 2020/21, but you can get a feel for the facility from past inspections. Look up the facility’s inspections on the department of Health Website for citations/violations: https://profiles.health.ny.gov/acf
Erika S. Verrill, Esq. Attorney-In-Charge Adult Care Facility Project Nassau/ Suffolk Law Services, Inc (631)232-2400 x3362 everrill@nsls.legal
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The Effects of Covid-19 on Property Taxes By Erin A. O’Brien
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here has been no immediate property tax relief available to New Yorkers since COVID-19 took the nation by storm in early 2020. While COVID-19 wreaked havoc on our communities, our economy and our real estate market, assessors statewide advised that they would not consider the market effects of COVID-19 until the next taxable status date for the subsequent assessment roll. The “taxable status date” is a snapshot in time where the assessor looks at the condition and ownership of each property as of that date. In the ten Suffolk towns, the 2021/22 tentative assessments are determined as of the March 1, 2021 taxable status date. For New York City properties, January 5, 2021 is the taxable status date for the 2021/22 tentative assessment roll. Nassau County, however, differs from its neighbors in that its January 4, 2021, taxable status date is for the 2022/23 tentative assessment roll, so any COVID-19 relief in Nassau property taxes will not be reflected until the 2022/23 tax bills. Nassau County did freeze its 2022/23 assessment roll so that assessed values remained unchanged from 2021/22.
Covid-19 Market Related Factors That May Affect Your Assessment Timely filing a property tax grievance is the first step to obtaining relief with your property taxes. Grievances must be filed annually to preserve the right to reduce each year’s assessment. As each annual filing period is only open for a matter of weeks, it is important to be aware of the statutory filing deadlines. In New York, commercial properties are generally valued on an income capitalization approach. Nassau County and New York City are considered “special assessing units” and they require that most owners of income producing property file an annual statement (Continued on page 31)
Erin A. O’Brien Partner, Certilman Balin Adler & Hyman, LLP
Erin practices in the area of real estate tax certiorari and condemnation. For additional information concerning this article, contact her at eobrien@certilmanbalin.com.
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Advance Planning Makes Sense By Lawrence Eric Davidow
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ith the average cost of a nursing home on Long Island running over $15,000 per month, the question of how to finance long term care is of utmost importance, especially since that cost is way more than a middle class income stream can handle. Enter the concept of advance planning with the primary goal in mind of saving middle class assets, especially the family home. Keep in mind the idea that times have significantly changed, making the need for older people to do advance planning even greater. A generation or two ago, it was far more common for three generations of a family to live together under a single roof, allow-
ing aging parents to be cared for in the course of every day family life. But in today’s world, older Americans increasingly find themselves at home alone, often because either their family lives out of state or the family lives close by but are too busy with full-time jobs and taking care of their own chil- Senior and Managing Partner of the Elder Law, Special Needs and Estate dren (also known as the sandwich Planning firm of Davidow, Davidow, generation). Alone and in need of Siegel & Stern LLP. care is a recipe for disaster. So, what to do? Well, they can secure a means of paying for long- Mr. Davidow has informed the elderly, term medical care without putting the disabled and their families about their legal rights for over 30 years. their home, their lifetime savings He is a Past President and Fellow of and their emotional well-being at
Lawrence Eric Davidow
the National Academy of Elder Law Attorneys and current member of the (Continued on page 30) Foundation Board of Suffolk AHRC.
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Bankruptcy, HIPAA and Issues with Medical Privacy By Craig D. Robins, Esq.
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ociety has increasingly recognized the importance of treating a consumer’s medical records as confidential. We now have federal laws safeguarding a patient’s right to privacy. What happens, however, when a bankruptcy filing enters the picture? If a consumer files for bankruptcy relief and the health care creditor needs to become involved in the case, what information can and cannot be filed? Suppose the medical provider, itself, files a bankruptcy. What protections are there to ensure that the health care business’s patient records remain confidential? These are all concerns that have been addressed over the past 25 years during an evolving period of patient privacy.
Consumers Seeking Bankruptcy Relief One of the biggest contributing factors for personal bankruptcy is a large amount of medical debt arising from a significant health event. Several studies have demonstrated that medical bills are the single largest causal factor in consumer bankruptcy filings. Medical debt, which is non-priority unsecured debt, is dischargeable. Many debtors easily discharge medical
debt in Chapter 7 cases. Trustees are charged with the obligation of examining the debtor at the meeting of creditors. Usually a trustee is only concerned about a debtor’s medical issues when they may involve a cause of action which might be an asset of the bankruptcy estate. As such, a trustee may ask the debtor if a disability or medical debt is related to an accident, or if an accident was involved, the trustee may inquire as to the extent of the medical injury, including diagnosis and prognosis. However, based on my observations, trustees have been extremely respectful about delving into sensitive medical issues, and if a debtor expressed concern about disclosing confidential medical information on the record, I suspect the trustee (Continued on page 29)
Craig D. Robins Esq. L.I. Bankruptcy Lawyer, Regular Columnist
Craig D. Robins, Esq., has offices in Melville, Coram, and Valley Stream. (516) 496-0800.
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It’s Time to Rethink Heart Health
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n average, someone in the United States dies from cardiovascular disease (CVD) every 36 seconds, approximately 2,380 deaths each day, according to the American Heart Association. Each day, 405 deaths occur in the U.S. as the result of strokes, an average of one death every 3:33. More people die annually from CVD than from any other cause including cancer, COPD, diabetes, lung infections and the flu, according to the American Heart Association (AHA) 2021 Heart Disease and Stroke Statistics. Consider these steps to #RethinkCVRisk to change the course of the disease and your life.
Understand Your Risk COVID-19 has shown that those with underlying CVD face an especially high risk of serious COVID-19related illness or even death, according to the Centers for Disease Control and Prevention (CDC). Regardless of whether you’ve received your COVID-19 vaccination, now is a good time to discuss your risk for heart disease with your doctor.
How Cardiovascular Disease Develops Risk factors for CVD include high cholesterol, high
triglycerides, diabetes and high blood pressure. Other factors that contribute to risk are family history, prior cardiovascular (CV) events, smoking, being overweight or obese and unhealthy diet and exercise habits. Over time, these risk factors can lead to injury of the blood vessel lining, causing inflammation, which can then trigger plaque growth. Plaque grows at different rates and in different arteries in the body for everyone and is often a slow, gradual process without symptoms. (Continued on page 27)
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(Heart Health continued from page 25) As plaque buildup continues, the risk of suffering a CV event – such as heart attack or stroke – increases. If plaque ruptures, the body will try to repair the injury, potentially causing a blockage to form, and
when an artery becomes fully blocked, blood flow is restricted. Blocked blood flow to the heart causes a heart attack while blocked blood flow to the brain causes a stroke. (Continued on page 28)
Truths and Falsehoods About Heart Disease Risk 1. Statins reduce your chance of experiencing a CV event by up to 90%. False. Statins, diet and exercise can lower your risk by about 2535%, but for many patients, controlled cholesterol doesn’t eliminate CV risk. This residual risk, or “persistent CV risk,” puts millions of patients at risk and has been the focus of therapeutic development for many years. 2. Managing high triglycerides along with taking statins is enough to reduce your risk. False. High triglycerides are a CV risk factor but lowering them won’t necessarily reduce your risk. For
example, earlier generation medicines prescribed to lower triglycerides, like fenofibrates and niacin, failed to show clinical benefit when used with statins to reduce CV risk. In fact, the FDA withdrew approval for fenofibrates and niacin in combination with statins because they add potential risk with no proven benefit to heart health. 3. Fish oil supplements are a proven way to get protection from a CV event. False. Fish oil supplements are not FDA-approved medicines intended to treat or prevent a medical condition. Despite multiple clinical studies, these products have not been proven, to reduce CV risk on
top of current medical therapies including statins. 4. Having a first CV event, such as a heart attack or stroke, puts you at greater risk to suffer another. True. Having a CV event makes you more likely to suffer another. That’s why it’s important to protect against a first CV event or future events. To closely monitor your heart health, stay in close contact with your doctor and reduce your risk by keeping up with your medications, exercising and sticking to a healthy diet. Family Features; Photos courtesy of Getty Images
(Little Acorns... continued from page 9) sistance policy at that time, it nevertheless tried to accommodate financially distressed patients who sought help. (In New York hospitals are now required to develop and publicize the availability of such programs.) The hospital sent a payment request three times in as many months. Although the communications invited the patient to apply for assistance and told him how to do it he ignored them as well as the several subsequent demands for payment made by way of letters from the collection agency to which the hospital routinely referred its bad debt collections. Then the debt “went legal.” From the service of a summons to the entry of the judgment, all with appropriate notice to him, the patient inexplicably did nothing. The judgment resulted in supplementary proceedings and the eventual deposition subpoena. Upon the inevitable failure to appear counsel applied for a court order and served it. When the patient again failed to appear the court found him in contempt. Served with the order he again did nothing. Then the sheriff locked him up. The headlines read, “Indigent Patient Jailed for Not Paying Hospital Bill.” www.scba.org • The Official Publication of the Suffolk County Bar Association • the legalBrief 27
(Heart Health continued from page 27)
Managing Risk Factors The most effective way to prevent CVD is to understand and address risk factors. Triglycerides play an important role in heart health. Triglycerides store unused calories to give your body energy and are the most common type of fat in the body. They come from foods you eat such as butter, oils and other fats,
O n average, someone in the United States dies from cardiovascular disease (CVD) every 36 seconds, approximately 2,380 deaths each day, according to the American Heart Association. as well as carbohydrates, sugars and alcohol. Your diet, lack of exercise, medical conditions, certain drugs and genetics can all cause high triglycerides. In the past, medicines used to lower triglycerides, like fenofibrates and niacin, were commonly prescribed to help manage CV risk along with statins. However, clinical studies failed to show benefits and both the U.S. Food and Drug Administration (FDA) and American Diabetes Association discourage combining niacin and fenofibrates with statins. Some turn to dietary supplement fish oil to help manage CV risk. However, supplements contain only
30% of the omega-3 fatty acids EPA and DHA (docosahexaenoic acid) with the majority of the product consisting of non-omega-3 ingredients, including saturated fats. Some data suggests certain ingredients in dietary supplement fish oils, such as DHA and saturated fats, may raise bad cholesterol. While high triglycerides are an indicator of CV risk, lowering them won’t necessarily reduce your risk. However, addressing the underlying causes of high triglycerides can help, according to the AHA.
Treatment Options With ongoing research, new standards-of-care are emerging. High cholesterol is a key CV risk factor with statins currently the first-line therapy for lowering cholesterol. Statins, diet and exercise can lower your CV risk by about 25-35%, but, for many people, controlled cholesterol doesn’t eliminate CV risk. This residual risk, or “persistent CV risk,” puts millions of patients at risk and has been the focus of therapeutic development for many years. Talk with your doctor about FDA-approved options that can help further reduce your heart risk if you already take statins. For more information about CVD and what you can do, look for #RethinkCVRisk on social media or visit truetoyourheart.com
(Understanding Advanced Directive Language continued from page 16) the answer is yes. The New York Health Care Proxy Law allows people over age 18 to appoint someone they trust — a family member or close friend (but not their own treating physician) — to make health care decisions for them (if they lose the ability to make decisions themselves) and a successor. Consider also executing what is called “a Living Will” so that your medical instructions are clear and can be read by people, if and when you are unable to communicate your wishes. This is helpful when the (9/11 Victim Compensation Fund continued from page 15) ber that registration with the WTCHP is NOT same as registration with the VCF -- you must separately register with both programs. For individuals with conditions certified by the WTCHP or families whose loved ones died after July 29, 2019, the VCF registration deadline is two years after the date of death or WTCHP certification
people you have named that cannot act, you are outside the country and/or the agent named needs guidance and maybe assurance they are doing what you want. An attorney experienced in these and other documents (such as a power of attorney and other estate planning documents) should be consulted. Make 2021 the year you ensure you — and your clients — have what is needed in case an unforeseen health care situation arises.
date. It must be understood that a VCF “Registration Deadline” is different than the “Filing Deadline.” “Registration” simply preserves the right to file a 9/11 claim in the future, waives no legal rights, and does not obligate a claimant to file a claim. Registration serves only to alert the VCF that you may be a potential claimant and it meets the legal requirement of timeliness set forth in the law. The Registration Dead-
line is not the same for everyone. If you lost a loved one since 9/11 who was present in lower Manhattan below Canal Street or anywhere that 9/11 debris was handled (see exposure zone map) at any time between September 11th, and May 30th, 2002, you should immediately register a potential claim for 9/11 death compensation and benefits with the VCF before the strict registration deadline on July 29, 2021.
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(Bankruptcy, HIPAA... continued from page 23) would permit such discussion to continue off the record in a subsequent confidential manner.
Medical Debt in Chapter 13 cases Some consumers are not able to file for Chapter 7 relief, either because they do not qualify for that chapter or for other reasons. Such consumers will often file for Chapter 13 relief instead. In Chapter 13, the debtor pays some or all of their debt back through a payment plan over a period of three to five years. In order to be paid, the creditor must file proof of claim form and any documents supporting the claim. The issue then becomes: What information should the health care creditor provide to protect its rights to file a claim, and what details should it hold back because they may impair the debtor’s patient privacy rights? In the past, there has been tension between the general bankruptcy concept that there should be full transparency when one seeks bankruptcy relief, and a patient’s right to reasonable medical privacy. The official court instructions for preparing a proof of claim are found in Form B-410. With regard to health care providers, the instructions provide that: “If a claim is based on delivering health care goods or services, limit the disclosure of the goods or services to avoid embarrassment or disclosure of confidential health care information.”As many hundreds of thousands of medical debt claims are filed each year, there is always a danger that the creditor will carelessly violate privacy laws. Any health care provider or collections agent on their behalf who fills out a proof of claim form should be especially careful to comply with privacy requirements. If any party, including the party filing the information, realizes that confidential information was inadvertently included, that party can immediately file a motion to seal the record. As mistakes do happen, the sooner the offending party takes responsibility for the error and engages in remedial action, the more likely they will be able to mitigate any negative recourse.
Bankruptcies Filed by Health Care Providers Doctors, hospitals and health care businesses are not immune from debt problems. However, when they do seek bankruptcy relief, they face unique challenges regarding the use and disclosure of patients’ medical information and must especially comply with HIPAA.
HIPAA Laws The most extensive federal health care privacy law got its start with the Health Insurance Portability and
Accountability Act of 1996, most frequently referred to as HIPAA. Now viewed as our nation’s primary patient privacy law, its privacy rules were added in 2003, which adopted national standards to prevent the disclosure of protected health information (PHI), which it defined as “any information held by a covered entity which concerns health status, the provision of healthcare, or payment for healthcare that can be linked to an individual.” Since then, most medical providers have endeavored to achieve full HIPAA compliance. However, a bankruptcy filing certainly complicates matters. The Bankruptcy Code does not contain any provisions that excuse a health care debtor from HIPAA compliance. In general, in a health care business bankruptcy, the trustee or the Chapter 11 debtor in possession must provide certain notice to patient creditors. In addition, health care business debtors or trustees will often seek bankruptcy court approval of procedures to ensure HIPAA compliance and to avoid potential liability for violating HIPAA requirements for protecting for patient data. With a healthcare business bankruptcy, it can be the patient who is the creditor and who must file a proof of claim. In such cases, the debtor should seek a bankruptcy court order before sending out blank claims forms to patients, to restrict public access to the proofs of claims. In some cases, the trustee or debtor in possession is sometimes left with the difficult task of disposing of thousands of patient files, each containing very confidential medical information. Ordinarily, the Chapter 7 trustee can abandon assets and simply walk away from them. However, when it comes to dealing with files containing sensitive medical data, Bankruptcy Code 351 addresses this issue. It provides that when a debtor lacks funds to retain medical records, certain notice requirements must be adhered to, such as providing written and/or published notices to patients and insurance companies, and destroying unclaimed records. The Bankruptcy Code provides another protection for patients in health care business bankruptcies. Code Section 333 requires the Court to appoint a patient care ombudsman in such cases to monitor the quality of patient care and represent the interests of patients, unless the court determines that doing so is not necessary for the protection of patients. Bankruptcy Code Section 101(27A) sets forth a lengthy definition of what comprises a health care business. Medical privacy in bankruptcy cases is an evolving area of the law. There are many cases that patients have brought against parties that have improperly disclosed confidential medical information. This is one area where extra care and attention is mandatory.
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(ERISA continued from page 18) Yet, non-compliance penalties can be as high as $110 per day, per employee, for as long as the employer is deemed to be out of compliance. It is also important to note that the insurance carriers do not provide any of these ERISA documents for distribution. Employers should be working with a knowledgeable benefits consultant or an ERISA service company that can provide these documents to them and advise them on distribution. The NYS DOL has partnered with the EBSA to audit health plans in
NY State for ERISA violations. This was proudly announced by then Attorney General Eric Schneiderman back in 2016. Since then, the Department has greatly increased their auditing personnel and even have quotas to fill, so they are very serious about enforcement. There is also a tremendous amount of inter-agency cooperation happening at both the federal and state levels, thanks to technology. An employer might be audited for Workman’s Comp, sales tax, ACA compliance, unemployment insurance, etc. and that can trigger
(Advanced Planning continued from page 22) risk, for the sake of themselves and their families. Easier said than done! However, there are tools and legal strategies available to use that reflect personal needs, values and objectives. The bottom line is that it is always a good idea to start planning sooner rather than later. So, what are
an ERISA audit as well, especially if there are any violations found. If the employer is not compliant in one area, the assumption is that the employer is likely deficient in other areas as well, so the case is easily referred to the other departments. The current regulatory environment makes it more important than ever that employers work with professionals who specialize in employee benefit consulting to assure that they remain fully compliant under the law. The consequences of non-compliance are extremely costly.
these tools to help us pay for Long Term Care? We can pay for it ourselves, we can purchase Long Term Care Insurance or we can utilize the benefits of the Medicaid program as long as we are “eligible” to receive those benefits. If you don’t have enough money put away for your care and long term care insurance is unavailable or unaffordable, Medicaid then becomes the only realistic alternative. But Medicaid is not the ideal solution since, at best, it is lukewarm about paying for enough home care and even worse when it comes to paying for assisted living but very generous for paying fully for a nursing home – the place most people do not want to be. The bottom line is that you want to do whatever you can to maximize your choices, and this is something you have to do in advance. There is a lot of incentive to plan ahead for the possible need of long term care, especially with the general declining heath of America in the form of rising obesity rates and the increase of diabetes, high blood pressure and cholesterol levels. And, putting your lifetime savings, your home and your emotional well-being at risk is just as compelling a reason to plan ahead. The most important thing is to choose the approach that best reflects the individual’s values, circumstances, desires and needs and to keep in mind that “Delay is the enemy.” As people age, it’s really important for them to do their best to try and remain in control of their destiny as much as possible. They need to have choices and planning ahead will allow them to retain as much flexibility as possible. Unfortunately, this type of planning is often put off until there is a crisis thereby limiting their available choices.
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(President’s Letter continued from page 3) agencies. Included in the Symposium will be a discussion on implicit bias and best employment hiring practices. A Path Forward through Diversity means that the essential fact of life is our shared humanity. Human beings are more alike than they are different. The Diversity Symposium will allow us, from that day forward, to explore how we treat others that are different and monitor or be aware of what we do to
maximize our human talents. For our future as a Bar Association, we require one another. We have a responsibility for others' professional growth and well-being and must incorporate that responsibility into the way we do business, more than we have ever done before. March 10, 2021 Hon. Derrick J. Robinson President, Suffolk County Bar Association
(Medical Debt continued from page 19) 2017, there’s a 180-day waiting period before unpaid medical debts can show up on people’s credit reports. With that, though, you will want to address the medical debt before this happens to avoid damaging your credit. A last resort available to those with impossible amounts of medical debt is bankruptcy. If you qualify for Chapter 7 Bankruptcy, your medical debt will be
discharged. If you don’t qualify for this type of bankruptcy, you might be eligible for Chapter 13 Bankruptcy. This option will require you to repay a portion of the medical debt that’s deemed affordable as part of a repayment plan. This remaining debt will be discharged but will show up on your credit as bankruptcy and thus impact your overall credit score.
(Covid 19 & Property Taxes continued from page 21) of income and expense. In Nassau County, it is called the Annual Statement of Income and Expense (ASIE) and in New York City, it is the Real Property Income and Expense (RPIE). Assessors rely on the income and expense information timely reported by property owners to prepare the subsequent tentative assessments. In 2020, New York City also required property owners to file a rent roll with their financial information and then, months later, to file a supplement to the rent roll, to reflect any new vacancies, revised lease terms, rent concessions, etc. While this information may not be requested by every municipality, it is important that your tax certiorari attorney have the most current financial information on your property to arrive at an accurate reflection of value. Increased vacancies have been
a significant result of the effects of COVID-19 in the real estate market. In addition to vacancies, the following factors may also strengthen an argument for reduction in assessment and should be conveyed with supporting documentation to your tax certiorari counsel: 1) business closings, 2) rent concessions, 3) claims for rent relief, 4) non-payment of rent, 5) collection loss and 6) expenses incurred in leasing new space. Additionally, any other defaults — from non-payment of property taxes, water bills or sewage bills, to short-term forbearance or permanent loan modifications — should also be conveyed to your counsel as they may all affect the property value.
File Your Grievance! While many property owners looked to their local and state governments for property tax relief,
(Resident Rights continued from page 20) Although both actions are eminently reasonable from an Administrative point of view, and paternalistically in the “best interests” of the Resident, they are nonetheless violating the individual’s rights.
municipal responses were extremely inadequate- mostly in the form of extended tax payment deadlines and, in some municipalities, fees or interest being reduced or waived for a limited time. The municipalities themselves have also been adversely affected by COVID-19. They are hopeful there will be sufficient financial assistance from the federal government. Without federal assistance, it is likely that property tax rates will increase, as municipalities have their budgets to maintain. While there is no guaranteed property tax relief, the best way to reduce your property taxes is to consult with a tax certiorari attorney and timely file a grievance. If you miss the filing deadline, you will lose your opportunity to get a reduction based on your COVID-19 related losses for the year 2020.
So, what is the answer to the dilemma? Public health mandates aside, the final analysis must always favor the resident’s rights, and the right to make their own choices.
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