Nassau Lawyer - Nassau County Bar Association

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The Journal of the Nassau County Bar Association
June 2015
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Of Note
NCBA Member Benefit - I.D. Card Photo
Obtain your photo for Secure Pass
Court ID cards at NCBA Tech Center.
Cost $10
July 14, 15 & 16 • August 4, 5 & 6
EVENTS
ANNUAL BLOOD DRIVE
Tuesday, June 16, 2015
12:45 - 6:45 p.m. at Domus
Details on page 6
ANNUAL COMMITTEE CHAIR MEETING
Thursday, June 18, 2015
5:30 p.m. at Domus
All 2015-16 Committee Chairs and
Vice Chairs are asked to attend
Don’t Miss Out!
NCBA DOMUS OPEN
Eisenhower “The Red”
Monday, June 22, 2015
Registration 12:00pm
Shotgun Start 1:00pm
Golf and BBQ- $195pp
Special Price - Foursome $700
BBQ Only- $75pp
5:30pm at the Carltun
Details page 20
Call Perri (516)747-4070 x226
NCBA BOARD OF DIRECTORS ORIENTATION
Wednesday, June 24, 2015
12:30 p.m. at Domus
All 2015-2016 Board Members are
invited to attend
WE CARE
Stephen W. Schlissel
Golf and Tennis Classic
Monday, July 27, 2015
Tam O’Shanter Golf Club
and The Mill River Club
See insert for registration details
Members
Commended
for Dedication
to the Bar
Meet the
2015-16
NCBA
President
Steven J. Eisman, an Executive
Partner at Abrams, Fensterman,
Fensterman,
Eisman,
Formato,
Ferrara & Wolf, LLP, Lake Success,
is the 113th president to lead the
Nassau County Bar Association.
Eisman co-chairs the firm’s Divorce
and Family Law practice and is the law
firm’s matrimonial law senior litigator
with extensive experience in contested
custody and high net worth divorce
cases. Steve Eisman has been an active
member of NCBA for 35 years, and is
a sustaining member. He has served
on the Board of Directors for the past
five years as an officer. He has chaired
the Supreme Court Committee and
is a member of the Matrimonial Law
and Family Court Law and Procedure
Committees. He also serves on the
Advisory Board for the We Care Fund,
a part of the Nassau Bar Foundation,
NCBA’s charitable arm. He is a reg-
By Valerie Zurblis
NCBA’s 113th President
Steven J. Eisman
ular participant in Continuing Legal
Education programs of the Nassau
Academy of Law.
During his term of office, Eisman’s
focus will be on sustaining the bar
association for the next generation,
concentrating on the physical headquarters building in Mineola as well as
the organization’s financial security.
He also will seek to bridge the gap
between young lawyers and members
of the judiciary, a valuable benefit
See EISMAN, Page 20
NCBA 116th Annual Dinner
Dance Held May 9, 2015
What’s Inside
“It took me seventeen years to
get three thousand hits in
baseball. It took one afternoon
on the golf course.”
Monday,
June 22, 2015
Eisenhower
“The Red”
Page 7
How the Emergency Medical Services and
Surprise Bill Law Changed the
Out-Of-Network Landscape Page 7
Page 8
The HIPAA Security Rule: Your Best
Defense Against Cybersecurity
Liabilities Page 9
Representing Clients with
Mental Illness The President’s Award is presented each year to one member of the
See MEMBERS, Page 14
A great afternoon of golf
Good Samaritan Laws During Disasters:
A Tricky Balance
Page 5
Telehealth Is Here To Stay President’s Award Honoree
Hon. Peter Skelos
DOMUS OPEN
Page 3
Protection and Privacy: Applying for a
Guardian Ad Litem Without Violating
HIPAA
Page 3
Providing in Divorce Agreements
for Health Insurance
Extraordinary service deserves recognition. Three Nassau County Bar
Association members were recently honored for making important contributions
to the Bar Association.
At NCBA’s Annual Meeting on May
12, Hon. Peter B. Skelos, Associate
Justice of the Appellate Division, Second
Department, received the President’s
Award for his leadership in obtaining
OCA funding for the NCBA’s Lawyer
Assistance Program; Rosalia Baiamonte
received the Directors’ Award for her service as chair of the Judiciary Committee;
and Past President Peter Levy received
the Frank J. Santagata Distinguished
Past President’s Award for his continuing
dedication to the Bar.
Hank Aaron
FOCUS: Health Care Law
New York’s Medical Marijuana
Program
Vol. 64, No. 10
www.nassaubar.org
Page 10
UPCOMING PUBLICATIONS
COMMITTEE MEETINGS
Thursday, August 13, 2015
12:45 at Domus
Thursday, September 10, 2015
12:45 at Domus
Call Today To Register
MEMBERS OF THE DISTINGUISHED PROCESSIONAL Seated from left: District Attorney
of Nassau County Madeline Singas, Hon. Ruth C. Balkin, Distinguished Service Medallion
Recipient Hon. A. Gail Prudenti, Hon. Carol Bagley Amon, Hon. Susan T. Kluewer.
Standing from left: NCBA then-President John P. McEntee, Hon. Thomas A. Adams, Hon.
Peter B. Skelos, Hon. Randall T. Eng, Hon. Leonard B. Austin, Hon. Edward W. McCarty III,
Hon. Edmund M. Dane, Hon. Christopher G. Quinn and Hon. Norman St. George. See page
11 for more Dinner Dance photos. (Photo by Hector Herrera)
Perri
(516) 747-4070 x226
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June 2015
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Nassau Lawyer
COMMERCIALLY RICH BACKGROUND
Robert Adams, Esq
Hon. Harold Beeler
Hon. Elizabeth Bonina
Former Sr. V.P. Risk Management,
Tishman Construction Corp., #2 Ranked
Mediator in the US by the National Law
Journal Reader Rankings Survey
Fmr. Justice of the Supreme Court,
New York Co.
Fmr. Justice of the Supreme Court,
Kings Co.
Specialties Include: Commercial,
Construction, Employment, Intellectual
Property, Taxation
Specialties Include: Administrative
Law, Employment, Insurance, Real
Estate, Sports
Specialties Include: Construction, Insurance,
Sports, Entertainment, International
Hon. Richard Brodsky
Mark J. Bunim, Esq
Richard P. Byrne, Esq
Fmr. Member of the NYS Legislature
Fmr. commercial litigation partner/
insurance litigation department
head- Bryan Cave L.L.P.
Co-Managing Partner, L’Abbate, Balkan,
Colavita & Contini, L.L.P., #3 Ranked
Mediator in the US by the National Law
Journal Reader Rankings Survey
Specialties Include: Agricultural,
Atomic Energy, Entertainment & the
Arts, Environmental, Government
Construction, Employment, Insurance
Coverage, Life, Health & Disability
Construction, Employment, Insurance/
Reinsurance, Risk Transfer
Robert I. Cantor, Esq
Hon. John P. DiBlasi
Hon. Robert Doyle
Partner, Cantor, Epstein & Mazzola, L.L.P.
Fmr. Justice of the of the NYS Supreme Court
/Fmr. Presiding Justice of the Commercial
Division, Westchester Co., #1 Ranked Mediator
in the US by the National Law Journal Reader
Rankings Survey
Fmr. Presiding Justice, Appellate
Term, Ninth and Tenth Judicial
District-Supreme Court
Co-op/Condo/HOA, Employment,
Environmental, Real Estate
Specialties Include: Commercial Employment,
Entertainment, Environmental, Land Use/Planning
Employment, Real Estate
Erica B. Garay, Esq.
Alan R. Fridkin, Esq
Hon. Ira Gammerman
Member, Meyer Suozzi English
& Klein P.C.
Fmr. Second VP/Assoc. General
Counsel, Mass Mutual Life
Insurance Company
Fmr. Justice of the Supreme CourtCommercial Division, New York Co.
Employment Law, Intellectual Property,
Franchise/Licensing, Real Estate
Specialties Include: Real Estate,
Employment, Life, Health and Disability,
ERISA Specialist, Insurance
Construction, E-Commerce, Land
Use, Securities/Banking
Hon. Jerome C. Gorski
Hon. E. Michael Kavanagh
Hon. Gabriel M. Krausman
Fmr. Associate Justice, Appellate
Division, 4th Dept.
Fmr. Assoc. Justice, Appellate Division,
1st and 3rd Depts.
Fmr. Assoc Justice, Appellate
Division, 2nd Dept.
Employment, Construction, Insurance,
Real Estate
Construction, Business Valuation,
Insurance, Employment
Construction, Education,
Employment, Environmental
Hon. Bernard J. Malone, Jr.
Hon. Thomas E. Mercure
Hon. Howard Miller
Fmr. Assoc. Justice, Appellate Div,
3rd Dept.
Fmr. Assoc. Justice, Appellate
Division, 2nd Dept.
Construction, Employment,
Environmental, Trade Secrets
Land Use, Employment, Insurance
Coverage, Construction
Fmr. Assoc. Justice, Appellate Division1st and 3rd Depts., Senior CounselWhiteman Osterman & Hanna LLP
Employment, Intellectual Property,
International, Oil & Gas
Hon. William C.Thompson
Hon. Ira B. Warshawsky
Partner, Friedman Kaplan Seiler
& Adelman LLP
Fmr. Associate Justice, Appellate
Division, 2nd Dept.
Securities, Employment, Intellectual
Property, Entertainment
Construction, Real Estate, Employment,
Insurance
Of Counsel- Meyer, Suozzi, English &
Klein, P.C., Fmr. Justice of the Supreme
Court, Nassau Co. -Commericial Division
Hal Neier, Esq.
The Better Solution
®
990 Stewart Avenue, First Floor, Garden City, NY 11530
Additional Locations: Manhattan,
Brooklyn, Staten Island, Westchester and Buffalo
(800) 358-2550 | www.namadr.com
Class Actions, Construction,
E-Discovery, Employment
Health Care Law
Nassau Lawyer
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New York’s Medical Marijuana Program
In June 2014, Governor Cuomo
Patients eligible for medical marijuasigned into law legislation that will na will be certified by a practitioner who
allow New York to join 22 other states is approved to certify a patient’s use of
and the District of Columbia in allowing marijuana (patients are not “prescribed”
residents to purchase and use marijua- marijuana, but are “certified” to use it).
na for medicinal purposes.1 As with the A practitioner will only be able to certify
many other states that allow for the a patient to use medical marijuana if he
use of medical marijuana, the law lays or she has treated the patient for the
the framework for a complex regulatory condition requiring the use of marijuana.
system that tasks the Department of
Upon a patient’s certification by a
Health (“DOH”) with tightly
physician, the patient (and
controlling the growth, sale,
his or her caregiver, if approand distribution of medical
priate) will then apply for an
marijuana.
identification card from DOH
The regulations set forth
that will allow him or her
stringent requirements on
to purchase marijuana at a
those entities that would
dispensary. The patient or
grow, manufacture, and discaregiver must have the ID
tribute medical marijuana,
card with them at all times
as well as limitations on the
they possess marijuana prodindividuals that can obtain
ucts; failure to do so can have
it. The regulations, which
repercussions under the penal
became official on April 15, Benjamin Malerba code. The patient will need
2015,2 were crafted through
to be re-certified every year,
a “very critical lens to ensure
unless he or she is deemed to
that the entire program would not be be suffering from a “terminal illness,” in
subject to enforcement action or legal which case the certification would last
challenges.”3 While the legislation for the patient’s lifespan.
legalizes medical marijuana under New
A certified patient can also designate
York law, federal law continues to pro- a caregiver who will be allowed to purhibit its possession and use, creating chase and possess medical marijuana
a complex legal landscape for those on the patient’s behalf if the patient is
involved with medical marijuana.
unable to obtain the marijuana on his
or her own.
Certified Users
Medical marijuana will be made
available to those suffering symptoms
caused by “severe diseases,” defined by
statute to include cancer, HIV/AIDS,
multiple sclerosis, and similar illnesses.4
The Commissioner of DOH has authority to expand the list of diagnoses, but
has declined to exercise it.
Authorized Marijuana Dispensaries
Patients will obtain their medical
marijuana from dispensaries operated
by one of five “Registered Organizations”
(“ROs”). ROs will be required to manage
the manufacturing process “from seed to
sale,” meaning growth, manufacturing,
and dispensing. Patients may have to
travel to obtain marijuana products,
however, as the law only allows for four
dispensaries per RO, meaning there will
only be 20 dispensaries in the state.
When a patient does visit a dispensary to purchase marijuana, the dispensary will more closely resemble a
pharmacy than a dispensary one might
see in other states. This is due in part to
the fact that marijuana cannot be sold
under the New York law in flower form,
nor can it be smoked.
Patients will receive pills or vials of
oil that contain the appropriate “brand”
of product for their consumption. ROs
will manufacture five different “brands,”
and a patient’s certification will restrict
the brands which he or she may purchase. Each “brand” will have a varying
ratio of tetrahydrocannabinol (“THC”)
to cannabidiol (“CBD”); two of the active
ingredients in marijuana (THC causes
the anti-depressant-like effects associated with marijuana, while CBDs do not,
but may be linked to some of the medical
benefits that have been associated with
marijuana).5
Patients will also have to bring cash
with them to the dispensary. As discussed in more detail below, marijuana
businesses are generally prohibited from
using credit cards, and no insurance
will cover the marijuana product as of
yet. The DOH will set the price for all
marijuana sold by a RO. Though there
has yet to be an indication of how much
marijuana products will cost, the regulations state that the DOH will review
the RO’s proposed price and consider it
in light of the RO’s practices, historical
price, and past sales (if applicable) in
either approving, modifying, or rejecting the proposed price. Patients may
then consume the medical marijuana as
directed by their doctor, but they may
not vaporize the product anywhere that
smoking is prohibited, such as schools,
hospitals, or restaurants.
Reconciling State and Federal Laws
Despite New York’s intricate regulatory scheme, the complex interplay
between the federal prohibition and
the proliferation of statewide legalization remains in flux. ROs and certified
patients will face a difficult legal landscape that will present everything from
potential criminal liability to financing
issues.
Marijuana remains illegal under federal law. The Controlled Substances Act6
(“CSA”) and its regulations classify marijuana as a Schedule 1 narcotic, meaning
it has “a high potential for abuse,” “no
currently accepted medical use in treatment,” and “a lack of accepted safety” in
its use.7 Its manufacture, distribution,
or possession in the quantities a RO will
likely possess is a felony punishable by
at least 10 years in prison, and possession by patients can also qualify as a
federal felony.8
The growing state legalization
trend has not gone unnoticed by the
Department of Justice (“DOJ”), however,
and the agency has issued three separate
memoranda on the enforcement of the
CSA, each progressively taking a more
permissive stance. The most recent memorandum, issued by Deputy Attorney
General James Cole on August 29, 2013,
states that DOJ does not intend to use its
resources to prosecute crimes relating to
marijuana if the offenders are otherwise
See MARIJUANA, Page 6
Protection and Privacy: Applying for
A Guardian Ad Litem Without Violating HIPAA
Attorneys are often faced with a
difficult decision when they are aware
that a party to the litigation is not
functionally able to prosecute or defend
his or her rights. If the attorney does
not want to proceed with a costly and
lengthy Article 81 Guardianship proceeding to have the party declared judicially incompetent, the attorney may
proceed under New York Civil Practice
Law and Rules under (CPLR) 1201 for
the appointment of a guardian ad litem.
This appointment is for purposes of representing the party within
the context of an individual lawsuit
only. Certain individuals need legal
assistance even though they have not
been formally adjudicated as lacking
capacity. However, unlike the statutory schemes which govern Article 81
Guardianship proceedings, there is limited guidance on what may be presented to the courts in the petitioner’s initial
application for a guardian ad litem
without violating the Health Insurance
Portability and Accountability Act of
1996 (HIPAA).
CPLR 1201 provides that a person
shall appear by a guardian ad litem if
“he is an adult incapable of adequately
prosecuting or defending his rights.”1
Attorneys who litigate on behalf of nurs-
ing homes and other medical profes- this incapacity, a motion must be filed.
There is case law that states that
sionals are often advised by their clients
when they believe an adult defendant is the burden is on the plaintiff, who has
notice that a defendant in
incapable of defending him or
the action is under a menherself in the litigation.
tal disability, merely to bring
The courts have held that
that fact to the court’s attenwhen a party’s de facto incation and then permit the
pacity is perceived, an intercourt to determine whether
ested person should apply for
a guardian ad litem should
appointment of a guardian
be appointed to protect such
ad litem.2 An attorney for
defendant’s interests.5 Even
the nursing home has standif a plaintiff determines that
ing to make the motion, and
it lacks sufficient proof upon
should do so to ensure the
which to make a motion for
effectiveness of proceedings
appointment of a guardian ad
that are adverse to the party
who is incapable of adequate- Melanie I. Wiener litem, the plaintiff is nevertheless obligated to bring this
ly prosecuting or defending
fact to the court’s attention
his or her rights.3
How does the opposing party estab- so that the court can make a suitable
lish the defendant’s “de facto incapac- inquiry as to whether a guardian ad
ity” in its motion papers without vio- litem is necessary to protect defendant’s
lating HIPAA? When a lawsuit is in rights.6
Yet, there are unreported lower court
full-swing litigation and the parties
have appeared numerous times before decisions which state that the initial
the judge, the court has an opportu- application for a guardian ad litem,
nity to assess the defendant’s mental merely alleging that upon information
state while in the courtroom. However, and belief the defendant is under a
when the lawsuit is commenced and mental disability, is insufficient. The
the defendant does not interpose an lower courts, in those decisions, did not
answer, and the plaintiff may not enter even consider requesting a conference
a default judgment4 whilst knowing of or further evidence in order to make its
own determination regarding capacity.
Courts have found that merely stating that the party in question is “indecisive” is conclusory and not founded
upon any evidence other than the attorney’s desire to settle the case. A difference of opinion regarding settlement
between the parties will be insufficient
to warrant appointment of a guardian
ad litem and there must be a showing
that the individual suffers from something more serious than idiosyncratic
behavior.7
Is the allegation that the defendant
resides at a mental hospital, while not
revealing his current mental state or
diagnoses, sufficient to conclude he
is mentally incompetent? One might
make the same argument regarding
a resident at a nursing home. Does
living at a nursing home automatically conclude that you are incapable of
defending your rights? There are indeed
numerous mentally competent patients
who must remain at a nursing home for
a long-term period due to recovery from
an accident.
The answer, unfortunately, is
unclear. When making a motion for a
guardian ad litem on your own client’s
See HIPAA, Page 14
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Nassau Lawyer
UNDERTAKING THE LEADERSHIP
OF THE ASSOCIATION
During the past four years in which I have served as to provide the Executive Board with a unique perspeca member of the Executive Board of our great associ- tive.
Treasurer Elena Karabatos, also currently serving as
ation, I have observed our Presidents as they led our
Board of Directors through a quagmire of challenging the President of the New York Chapter of the American
Academy of Matrimonial Lawyers, contribissues, including the retirement of our long
utes a common sense, no nonsense attitude
term Executive Director, the replacement
that keeps us focused.
of our caterer, a loss of funding for our outAnd last but not least, Secretary, Rick
standing Lawyer Assistance Program and
Collins, a nationally recognized criminal
the deterioration of the structure we lovingly
defense attorney, continues in the tradition
call “Domus”. But as Friedrich Nietzsche
of his law firm in its continuing commitsaid “That which does not kill us makes us
ment to provide our Association with outstronger.”
standing leadership.
And now, as I assume the reigns of leaderMost importantly, however, is that the
ship, our organization faces the daunting task
bylaws provide that the Immediate Past
of embarking upon a course of action necesPresident, John McEntee, will continue to
sary to preserve Domus for future generaserve as a member of the Executive Board.
tions of lawyers. As you might expect, there
John’s outstanding leadership in this past
is significant expense inherently attached to
year navigated our Association through
the construction that will be needed, and the
some challenging times with great success.
Board of Directors, in its wisdom, has authoWith the help of Justice Peter Skelos, we
rized the borrowing of one and a half million
were able to obtain the funding needed to
dollars. And that is only enough money to
Steven J. Eisman
maintain the Lawyers Assistance Program,
pay for those repairs that are immediately
necessary. More funds will need to be secured and a vital service to lawyers in need that operates under
expended over the next several years to ensure that our the auspices of our Association. Past President John
never wavered in his support of this program and his
building is properly preserved and maintained.
At the same time, our Association, like most Bar commitment to ensure its funding.
Additionally, John steered the Board through the
Associations nationwide, faces the prospect of declining
difficult process of hiring the appropriate professionals
to identify the structural and mechanical deficiencies
existing in the building we lovingly refer to as “Domus”.
...we are charged with the
He then guided the Board through the process of earmarking the repairs that needed to be immediately
responsibility of ensuring that
addressed as well as those that will need to be tackled
over the years ahead. Finally, John and his law firm
we continue to maintain both our
helped the Association secure the financing necessary
to preserve our structure. I would be remiss if I did not
historical building and to continue to
thank John’s partners at Farrell Fritz for the countless
hours of billable time they donated to our Association
add to the membership roster...
during John’s tenure.
It is my goal during my year as your President to do
membership due, in great part, to the challenge faced everything possible to sustain our great organization
for future generations. In order to accomplish this, we
by our law school graduates in securing employment.
A corollary to this issue has been a substantial will need to redouble our efforts to raise funds to enable
decline in law school admissions as more and more us to retire our debt on an expedited basis. I have
potential members of our profession become discour- asked Past President Christopher McGrath to chair
aged by the reports of an over-saturated legal market.
a task force to address this issue. He has graciously
I believe we are charged with the responsibility of accepted.
ensuring that we continue to maintain both our historI am also a firm believer that a collegial relationship
ical building and to continue to add to the membership between the Bench and the Bar, which our Association
roster that allows us to boast that we are the largest fosters, is integral to our continued success, and that
suburban Bar Association in the United States.
it is critical for the continued growth and health of
This can be accomplished by building on the success our Association to strengthen the relationship between
of those parts of our organization that are our corner- the newer practitioners and the Bench. This will both
stone, and by implementing new ideas and involving engender a better understanding between the younger
new members.
members as to what the Court expects, while simultaDuring his tenure as President, Past President Peter neously promoting a dialogue between the young lawMancuso recommended, and his Board approved a yers and the Judges in a relaxed atmosphere.
change in our bylaws which consolidated the positions
To this end, Justice Jeffrey Goodstein, sitting in
of First and Second Vice President into one office. This the Supreme Court, Matrimonial Center, and Andrea
change removed a year of service by anyone considering Brodie, immediate past Chair of our Young Lawyers
the road to the Presidency of this organization.
Committee, have agreed to serve as the Co-Chairs of
The immediate practical effect is that I become the a task force designated to explore the most effective
first President to serve without a new addition to the avenue to address the needs of our young lawyers and
Executive Board. While the downside of this is the loss ensure their continued involvement which is so critical
of a fresh perspective at Executive Board meetings, the to the sustained health of our association.
upside is a talented and seasoned Executive Board that
During the coming year, I hope to successfully continis totally dedicated to the success of our Association.
ue all of the existing programs, clinics and Continuing
President-Elect Martha Kriesel, an incredible advo- Legal Education classes, (under the guidance of our
cate for all of our Access for Justice programs, has Dean, Mary Ann Aiello) which have long been the
spearheaded pro bono programs that have garnered hallmark of success of our Association. We have an
national recognition for our Association. She is cur- outstanding group of committee chairs and a dedicated
rently coordinating a pilot program that would poten- Board of Directors who have all volunteered their time.
tially return screening for appointment of counsel for We all look forward to serving during the coming year,
indigent litigants.
and I personally thank all of the members of this great
Vice President Steve Leventhal utilizes his munici- organization for placing their faith in me to serve as the
pal law background and his broad experience in ethics 113th President of the Nassau County Bar Association.
From the
President
Nassau Lawyer welcomes articles written by members of the Nassau County Bar Association and are of substantive and procedural legal interest to
our membership. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to the Nassau Lawyer, its
editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations.
Nassau
Lawyer
The Official Publication
of the Nassau County Bar Association
15th & West Streets, Mineola, N.Y. 11501
Phone (516) 747-4070 • Fax (516) 747-4147
www.nassaubar.org
E-mail: info@nassaubar.org
NCBA Officers
President
Steven J. Eisman, Esq.
President-Elect
Martha Krisel, Esq.
Vice President
Steven G. Leventhal, Esq.
Treasurer
Elena Karabatos, Esq.
Secretary
Richard D. Collins, Esq.
Executive Director
Keith J. Soressi, Esq.
Editor-In-Chief
Christopher J. DelliCarpini, Esq.
Associate Editors
Rhoda Y. Andors, Esq.
Anthony J. Fasano, Jr., Esq.
Proofreader
Allison C. Shields, Esq.
Editor/Production Manager
Sheryl Palley-Engel
Assistant Editor
Valerie Zurblis
Photographer
Hector Herrera
Editorial Staff
Anthony J. Fasano, Jr., Esq.
Focus Editor
Rhoda Y. Andors, Esq.
Sean E. Campbell, Esq.
Ellin Regis Cowie, Esq.
Nancy E. Gianakos, Esq.
Thomas McKevitt, Esq.
Jeff H. Morgenstern, Esq.
Upcoming Focus Issues
July/August 2015
Elder Law/ Trusts & Estates
September 2015
Real Estate/ Municipal Law
October 2015
OCA/ General
Committee Members
Christopher J. DelliCarpini, Esq., Chair
Rhoda Y. Andors, Esq., Vice Chair
Anthony J. Fasano, Jr., Esq., Vice Chair
Deborah S. Barcham, Esq.
Gale D. Berg, Esq.
Sean E. Campbell, Esq.
Deanne Marie Caputo, Esq.
Ellin Regis Cowie, Esq.
Marc G. DeSantis, Esq.
David J. Friedman, Esq.
Nancy E. Gianakos, Esq.
Michael R. Gionesi, Esq.
Robert S. Grossman, Esq.
Sharon Kovacs Gruer, Esq.
Adrienne Flipse Hausch, Esq.
Kristina S. Heuser, Esq.
Charles E. Holster III, Esq.
Arielle S. Howe, Esq.
Anthony F. Iovino, Esq.
George M. Kaplan, Esq.
Kenneth J. Landau, Esq.
Michael J. Langer, Esq.
Douglas M. Lieberman, Esq.
Dennis M. Lyons, Esq.
Cheryl Y. Mallis, Esq.
Angelica Marie McKessy, Esq.
Thomas McKevitt, Esq.
Jeff H. Morgenstern, Esq.
Marian C. Rice, Esq.
Daniel W. Russo, Esq.
Rayne M. Sassower, Esq.
Michael A.H. Schoenberg, Esq.
Meryl D. Serotta, Esq.
Thomas G. Sherwood, Esq
Christina H. Singh, Esq.
Andrij V.R. Szul, Esq.
David Torreblanca, Esq.
Eric Anthony Zeni, Esq.
Published by Long Island Business News
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Graphic Artist
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Scott Schoen
Nassau Lawyer (USPS No. 007-505) is published
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Postmaster: Send address changes to the
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Nassau Lawyer
Health Care Law
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June 2015
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Good Samaritan Laws During Disasters:
Balancing Altruism and Accountability
On August 28, 2005, Hurricane
Katrina devastated the city of New
Orleans, killing nearly 2,000 people
and displacing approximately 1,000,000
residents. During the hurricane, decisions regarding priority of care had to
be made by first responders and health
care personnel.
In one highly publicized case, medical personnel at Memorial Medical
Center in New Orleans had to make
life and death decisions about which of
their patients would receive the limited
medical supplies and resources to save
their lives.1 One doctor and two nurses
were even brought up on second degree
murder charges for decisions they made
there.
A grand jury ultimately declined
to indict these medical personnel, but
this case raises questions regarding the
appropriate standard by which emergency responders and health care providers should be judged and what legal
protections are available to volunteer
first responders in emergencies.
New York’s Good Samaritan Law
Under New York’s Public Health
Law, “any person who voluntarily and
without expectation of monetary compensation renders emergency treatment to an individual at the scene of an
accident or other emergency situation
Jeffrey C. Gerson
Kristina I. Duffy
outside of a hospital” or other medical
setting, “shall not be liable for damages
for any injuries” or death as a result
of the emergency treatment rendered
unless it is established that the injuries
or death were due to gross negligence
on the part of the volunteer.2
The Good Samaritan Law does
not create an affirmative duty for a
volunteer to respond to an emergency. However, when a volunteer does
respond to an emergency, his or her
actions are judged by the higher “gross
negligence” standard, rather than the
ordinary preponderance of the evidence standard typically applied in civil
actions.
In determining whether New York’s
Good Samaritan Law applies to a first
responder, the courts look to the unique
facts of the case to determine if the
responder was a volunteer with no
affirmative legal duty to respond to the
emergency situation.
To illustrate, in one case, Rodriguez
v. New York City Health and Hospital
Corp., an off-duty doctor was returning
home to his apartment. As he was climbing the stairs, he was stopped by another tenant in the building. She asked the
doctor to look at her husband who was
not feeling well. The doctor examined
her husband, determined that he was
very sick, called 911 for an ambulance,
and then left. An ambulance did take
the patient to the hospital, but he did
not survive. The decedent’s estate then
sued the doctor for malpractice.
The court held that since the doctor
had voluntarily treated the husband
in an emergency situation, the Good
Samaritan Law applied. There was no
legal basis to impose liability on the
doctor, since his actions did not rise to
the level of gross negligence and the
court dismissed the estate’s complaint.3
If the doctor had chosen to ignore
the wife’s plea for help, he still would
not have been liable for any damages
because he had no affirmative duty to
provide medical assistance under the
circumstances.
Contrast this case to the situation
where a patient comes into a doctor’s
office seeking emergency treatment and
dies. The Good Samaritan Law will
not apply because the treatment was
rendered in a doctor’s office. Therefore,
the applicable standard would be the
preponderance standard, not the higher
gross negligence standard.4
Federal Good Samaritan Laws
The federal government has also
enacted legislation to protect emergency medical responders in crises like
terrorist attacks and natural disasters.
However, the measures taken by the
federal government to limit liability
in crises provide protection only in
narrowly defined circumstances, with
piecemeal measures that leave individual medical personnel puzzling over
whether to volunteer their services.
One statute that provides protection to emergency responders, including
medical responders, is the Emergency
Management Assistance Compact
(“EMAC”). EMAC has the principle
function of facilitating the exchange of
resources and personnel between states
in times of emergency.5 EMAC was
ratified by Congress in 1996.6 Since
that time, all fifty states, the District of
Columbia, Puerto Rico, Guam, and the
U.S. Virgin Islands have enacted legislation to join EMAC.7
The purpose of EMAC is to create a
See DISASTERS, Page 17
6
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Nassau Lawyer
MARIJUANA ...
Continued From Page 3
in compliance with their state’s regulatory scheme and are not threatening
enumerated federal priorities including
the prevention of marijuana business’s
involvement with organized crime, violence, or other illegal activity, preventing
public health risks associated with marijuana use (such as driving under the
influence), and possession of marijuana
on federal property.9
While this memo provides guidance
to U.S. Attorneys as to how to effectively
deploy resources and exercise prosecutorial discretion, it provides no shield
from prosecution under the CSA, nor
does it change the fact that marijuana
possession and use remains illegal. No
U.S. Attorney in New York has made
a public statement as to their intent to
follow the memo’s guidance or otherwise
enforce the CSA against state-compliant
New York entities or persons.
The CSA is not the only federal legislation ROs will have to contend with.
The intended medical use of marijuana
in New York may cause it to fall into
the definition of a “drug” under the
Food, Drug, and Cosmetic Act and its
regulations (the “FDCA”).10 If medical
marijuana were to be classified as a
“drug,” it would have to go through rigorous research and clinical trials before it
could be put to market, just as any new
pharmaceutical would.
The FDA has not issued guidance
either on how it classifies marijuana or if
it intends to enforce regulatory oversight
of it, though it has posted a statement
on its website noting marijuana has not
undergone testing as other new drugs do,
and calling for additional research into
marijuana and its uses. Despite the lack
of testing, the FDA has taken notably few
enforcement actions in other states with
similar regulatory schemes to New York’s.
ROs will also face challenges in conducting business with banks due to multiple laws that prevent banking transactions with the proceeds of illegal businesses. These laws include anti-money
laundering statutes11 which make it a
felony to enter into a transaction with
illegal proceeds (which applies to banks
and ROs) and the unlicensed money
transmitter statute12 which makes it a
felony to operate a money transmitting
business that involves money derived
from criminal offenses.
Banks are also liable under the
Banking Secrecy Act (“BSA”), which
requires banks to, amongst other
things, report suspicious activity to the
Financial Crime Enforcement Network
(“FinCEN”).13
FinCEN has released its own guidance on the BSA, stating that while
reporting financial transactions with
marijuana businesses is mandatory,
otherwise normal transactions with a
marijuana business otherwise in compliance with its state’s regulatory scheme
should be marked “Marijuana Limited”
and contain a minimal amount of information. More suspect transactions are
to be reported as “Marijuana Priority,”
and be treated as any other suspicious
activity report would.14 DOJ has also
applied its CSA memorandum reasoning
to financial crimes.15
Banks remain reluctant to do business with marijuana producers, however, due to these laws and the belief
they may be aiding and abetting a violation of the CSA. In addition to issues
securing financing from banks, ROs will
have to operate as cash-only businesses,
as major credit card companies have
similarly refused to become involved in
marijuana.
Interstate Conflicts
Further muddying the legal waters,
Oklahoma and Nebraska filed a lawsuit
against Colorado in the United States
Supreme Court to attempt to invalidate
Colorado’s legalization of recreational
marijuana, claiming they have been
harmed by an increase in marijuana
possession occurring in their states.16
While the suit is predicated on the
fact that marijuana remains illegal on
the federal level, it makes an interesting argument in attacking Colorado’s
regulatory scheme for the production,
sale, and taxation of marijuana instead
of the underlying legality of possessing and using marijuana. The Supreme
Court’s ruling may set precedent that
may either facilitate the further legalization of marijuana, or curtail distribution
in states in which it is already legal.
While that action awaits resolution
in the Supreme Court, U.S. Senators
Booker, Gillibrand, and Paul have
co-sponsored the CARERS Act,17 which
would remove many of the federal hurdles discussed above. If passed, the federal bill would reschedule marijuana as
a Schedule 2 drug instead of a Schedule
1 drug. Schedule 2 drugs are tightly regulated, but can be prescribed by a physician; other Schedule 2 drugs include
Ritalin and Oxycodone.
Rescheduling marijuana would allow
states that allow medical marijuana
(recreational marijuana would remain
illegal), such as New York, to operate
in compliance with the CSA. The bill
would also provide safe harbors to banks
transacting with marijuana businesses
and remove CBD from the definition of
“marijuana,” allowing CBD extractions
to enter interstate commerce. The bill
would also remove the prohibition on VA
doctors referring medical marijuana to
patients and expand research opportunities into marijuana.
New York is on the cusp of joining
nearly half the states that allow their
residents to obtain marijuana for medical purposes. There remains a long way
to go, however, in registering patients,
selecting ROs, and getting the program
operational and providing for patients by
the legislation’s effective date in January
2016. Once the ROs are up and running
and patients are able to obtain marijuana products, there may still be a myriad
of issues imposed by the complicated
legal landscape relating to marijuana.
Benjamin Malerba is a Partner in the Health
Services group at Rivkin Radler LLP,
Uniondale. Gregory Mitchell is an Associate
in the Health Services group.
1 Codified at N.Y. Pub. Health Law § 3360 et seq.
2 Codified at 10 NYCRR § 1004 et seq.
3 N.Y. Dept. of Health, Summary of Assessment
of Public Comment (March 31, 2015), available at
www.nytimes.com.
4 N.Y. Pub. Health Law § 3360.
5 See Abir T. El-Afly, et al., Antidepressant-like
effect of Δ9-tertrahydrocannabinol and other
cannabinoids isolated from Cannabis sativa L,
95 Pharmacology, Biochemistry, and Behavior
434-42 (2010).
6 21 U.S.C. § 841 et seq.
7 21 U.S.C. § 812(b)(1).
8 21 U.S.C. § 841(b)(1)(A)(vii).
9 James M. Cole, Deputy Attorney General, U.S.
Department of Justice, Memorandum for All
United States Attorneys: Guidance Regarding
Marijuana Enforcement (August 29, 2013), available at www.nytimes.com.
10 21 U.S.C. § 301 et seq.
11 18 U.S.C. §§ 1956-1957
12 18 U.S.C. § 1960
13 18 U.S.C. § 5311 et. seq.
14 BSA Expectations Regarding MarijuanaRelated Businesses (Feb. 14, 2014), available at
www.nytimes.com.
15 James M. Cole, Deputy Attorney General,
U.S. Department of Justice, Guidance Regarding
Marijuana Related Financial Crimes (February
14, 2014), available at www.nytimes.com.
16 Matt Ferner, SCOTUS Seeks Feds’ Views On
Marijuana Lawsuit Against Colorado, www.huffingtonpost.com (May 4, 2015).
17 Compassionate Access, Research Expansion,
and Respect States Act of 2015, 114th Congress
S.683 (2015).
Nassau Lawyer
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7
Providing for Health Insurance
in Divorce Agreements
In both mediated and litigatPursuant to Domestic Relations
ed divorces, health insurance often Law Section 255, in every divorce
takes center stage in the negotiations. agreement in the State of New York,
Skilled practitioners will recognize the parties must specifically conthe value of health insurfirm, in writing, that they
ance in today’s divorce medihave been advised of and
ation and litigation settings
understand the effect of the
and utilize this commodity
agreement on their rights to
to the best of their ability
obtain health coverage from
in negotiating an amicable
their soon-to-be ex-spouse’s
agreement.
health care policy. Common
In today’s world, health
language used to forewarn
insurance is highly valued
the parties of the effect of
and expensive to replace.
divorce on health insurance
Pragmatically, it is often
typically includes:
provided by one spouse to
It is understood pursuant
the other. Health insurto Domestic Relations Law,
ance could arguably be one Cory Rosenbaum Section two hundred fifty
of the most valuable “marifive, that upon entry of a
tal assets” in a modern day
Judgment in this action, I may or
divorce case in light of the cost to
may not be eligible to be covered
replace it, notwithstanding the prounder my spouse’s health insurance
visions of the recent Affordable Care
plan, depending upon the terms of
Act legislation, commonly known
the plan.
as “Obamacare.” Even utilizing
It is understood pursuant to
Obamacare, costs can easily range
Domestic Relations Law, Section
from six hundred to eight hundred
two hundred fifty five, that upon
dollars per month, or more, for several
entry of a Judgment in this action,
decades.
I may or may not be eligible to be
covered under my spouse’s health
Divorce Agreements Must Address
insurance plan, depending upon the
Health Insurance
terms of the plan.
Health insurance issues may be
Health insurance is such an integral part of a divorce action and nego- addressed in a number of ways when
tiation that it is the subject of a special the parties utilize alternative dispute
provision in the Domestic Relations resolution methods, such as mediaLaw, which requires notice provisions tion, rather than pursing the matter
regarding its eligibility upon divorce.1 with a court.
Common resolutions to maintaining health insurance for all parties
subsequent to a divorce include:
• Entering a divorce settlement
agreement now, but not actually
obtaining an order granting a
divorce until some time in the
future;
• Both sides accepting coverage from
their respective employers subsequent to the divorce, rather than
utilizing one spouse’s employer’s
coverage, as was the case during
the marriage;
• One party agreeing to pay the
costs of the other obtaining coverage;
• Waiving rights in interests in
other assets, subject to equitable
distribution, to take into account
the need for health insurance
coverage;
• Altering the sharing of the marital
assets, taking into consideration
the cost one party may have to
incur to pay for health insurance
post divorce or;
• A mutually beneficial agreement
which fits the lives of the parties
(and their children) post-divorce.
Reach a Mediated Divorce
Settlement Now and Divorce Later
In decades past, many couples
would enter into a “separation agreement” and wait a year before filing for
a divorce. This practice complied with
the pre no-fault divorce law and also
gave couples time to become accustomed to the idea that their marriage
was officially ending.
In recent years, however, couples
often agree to divorce, substantively
and financially end their marriage,
and yet simply refrain from obtaining
an order granting a legal divorce. By
not being legally divorced, both parties continue to receive health insurance benefits as if they were still substantively married. In recent years,
the courts have not held that there is
any time limit imposed on continuing
to live in this manner.
Each Party Obtains Coverage from
their Respective Employers
If both parties have employment
opportunities in which health insurance is provided to them via their
employers, they can each simply obtain
coverage from their respective employers.
During the marriage, the parties
may have chosen to obtain coverage
from one employer or the other, in
consideration of expense and coverage
options. The reality of the situation
facing parties today is that subsequent
to a divorce, rights and responsibilities
upon divorce will undoubtedly change.
Although parties are certainly free to
work as many hours as desired, health
coverage may not satisfy the needs of
the party or their children.
See DIVORCE, Page 22
How the Emergency Medical Services and Surprise
Bill Law Changed the Out-Of-Network Landscape
The Emergency Medical Services
and Surprise Bill Law went into effect
on March 31, 2015, and is destined to
have a meaningful impact on physicians, patients, hospitals and insurers
in New York.
Generally speaking, the Law amends
or adds new provisions to the New
York State Insurance Law, Financial
Services Law and Public Health Law,
and is aimed at addressing multiple
concerns relating to out-of-network billing for medical services. Prior to the
enactment of the Law, out-of-network
providers were not prohibited (and, in
fact, were required) to balance-bill most
patients. This occurs when a healthcare provider bills for charges other
than co-payments, coinsurance or any
amounts that remain on an annual
deductible, which exceed a health plan’s
reimbursement for a covered service.
Limiting Patients’ Liability
for “Surprise” Bills
While the specifics of the Law are
somewhat nuanced, the basic gist of the
Law is that patients who receive outof-network care in an emergency room,
or who receive a “surprise bill” from an
out-of-network provider, are no longer
responsible for paying anything more
than they would for in-network care.
Therefore, while the patient is largely
taken out of the equation, out-of-network doctors and hospitals are now
David A. Zarett
Akshara Kannan
faced with the prospect of securing payment only from the health insurer. If
an amount cannot be agreed upon, the
Law sets up an Independent Dispute
Resolution process (“IDR”).
The primary purpose of the Law is
to protect consumers from unexpected
medical costs. “Surprise bills” include
bills sent to patients who received
care from an out-of-network provider
because:
• a participating provider was
unavailable;
• the services were rendered by a
non-participating provider without
the patient’s consent or knowledge;
• unforeseen medical services had to
be rendered;
• the patient was referred to a
non-participating provider without
the patient’s explicit written consent; or
• an uninsured patient did not
receive timely required disclosures.
Surprise bills do not include those
received by patients who knowingly elected to receive out-of-network
care when a participating physician was available.1
Non-participating providers now
need to make certain disclosures to
their patients with respect to their outof-network status.2 Disclosures about
network status and hospital affiliations
have to be made in writing or on the
physicians’ websites prior to the rendering of services at the physicians’ offices. Verbal disclosures must take place
when patients schedule appointments.
Physicians must also advise patients
of their right to request the estimated
cost of the anticipated services and,
upon such request, disclose what they
typically charge for those services. Both
participating and non-participating providers also need to advise their patients
of any other healthcare professional
who will be involved in their care so
that patients may ascertain their network status.
Even if all proper disclosures are
made and the patients provide written
consent to receive out-of-network care,
physicians must now also include claim
forms3 when sending out bills. These
new obligations will likely result in the
need for medical practices to train their
staff as well as draft the relevant disclosure forms.
Complying with the new Law is
imperative, because if the patient did
not consent to the out-of-network care
or if the patient received emergency
care, then they cannot be balance-billed.
Such patients will be held harmless and
will not incur any costs over and above
applicable co-pays, co-insurance and
deductibles.
Determining Reasonable
Reimbursements
This new reality leaves out-of-network providers in a rather precarious
situation. They cannot balance-bill their
patients, and must rely on payment
from insurance companies that have,
some say, under-reimbursed them in
the past. Providers often find that the
internal insurance company appeal
process is stacked against them and
tends to be futile. Similarly, insurance
companies frequently complain that
out-of-network providers overcharge for
their services. Litigation is an expensive proposition with no guaranteed
outcome for either party.
In balancing these competing interests, New York State decided that providers and insurers, if unable to agree
informally on a reimbursement, should
participate in “baseball style” arbitrations, to determine whose number is
“more reasonable.” The arbitrations will
be conducted by Independent Dispute
See SURPRISE, Page 15
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Health Care Law
Welcome to the World of Telehealth
On December 29, 2014 Governor
Cuomo signed telehealth legislation
that will take effect on January 1, 2016.
The law addresses telehealth services
by private insurance plans and New
York State Medicare programs. The
Public Health Law, Insurance Law,
and the Social Services Law will include
sections that specifically address
telehealth.1 New York is now one of
twenty-four states and the District of
Columbia with parity laws.2
“[T]elehealth is a collection of means
or methods, not a specific clinical service, to enhance care delivery and education.”3 Telehealth is poised to play
an important and highly visible role in
reducing costs and increasing access
and quality healthcare services to
patients. Use of telehealth also creates
health care delivery options to patients
with limited ability to travel to healthcare facilities. The implementation of
the Affordable Care Act, emerging regulations, technological advancements,
and governmental bipartisan support
has resulted in telehealth becoming one
of the fastest growing trends in health
care delivery.
Defining the Terms for New York
The new law is a big step in the
right direction, but there are presently
significant obstacles to full scale implementation of telehealth services. For
instance, the Commissioner of Health,
state agencies, and medical boards still
maintain the right to rule making. For
example, the New York State Office
of Mental Health released guidelines
on telepsychiatry in February for its
licensed facilities.4 The introduction
of different guidelines and rules from
numerous sources can clarify issues or
create ambiguity and inconsistencies in
the proper application, interpretation,
and implementation of the law and
reimbursement for services.
Even the very terms telehealth and
telemedicine continue to evolve and
there is no consensus on the definition
of either of the two terms.5 There is
no single federal or nationwide definition of telemedicine or telehealth.
The definitions by states are based on
their own specific statutes, state licensure requirements, and reimbursement
rates.
New York now clearly defines what
constitutes telehealth, telemedicine,
distant and originating sites, and telehealth providers. Telehealth is limited
to telemedicine, store and forward tech-
nology, and remote patient monitoring. necessary to establish the relationship?
In New York, telehealth is defined as: Many organizations are weighing in on
the use of electronic information the issue.
and communication techWhen patients and their
nology by telehealth proproviders do not have to
viders to deliver health
interact in real-time, “store
care services which shall
and forward” technologies
include the assessment,
are the perfect answer. store
diagnosis, consultation,
and forward options range
treatment,
education,
from simple software to comcare management and/
plex stand-alone devices that
or self-management of a
are integrated into an elecpatient. Telehealth shall
tronic medical record. Digital
not include the delivery
images can be recorded and
of health care services by
then shared with the distant
means of audio-only teleprovider at a different locaPatricia Kessler tion or at a later time.
phone communications,
facsimile machines, or
The New York law narelectronic messaging alone
rows the definition of store and forward
though the use of these technologies as:
is not precluded if used in conjuncasynchronous, communications in
tion with telemedicine, store and
which data can be transmitted interforward technology or remote patient
mittently rather than in a steady
monitoring.6
stream, to electronic transmission
“Telemedicine” is defined as:
of patient health information via
the use of synchronous, two-way elecpatient-specific digital images and/or
tronic audio visual communications
prerecorded videos.8
to deliver clinical health care serRadiology films are the most common
vices, which shall include the assess- form of store and forward technology.
ment, diagnosis and treatment of a Other specialties that may benefit from
patient while the patient is at the store and forward technology include:
originating site and a telehealth pro- dermatology, dentistry, wound care and
vider is at a distant site.7
pathology.
The New York definition of telemediWhen it is not necessary for a
cine is similar to what other states and patient to remain in the hospital but
organizations refer to as videoconfer- is in need of on-going care, remote
encing.
patient monitoring equipment is often
Videoconferencing allows patients a viable option. Typically, equipment
and healthcare providers to see and used for this purpose include sensors,
hear each other in real time when they scales, blood pressure cuff, thermomeare in different locations. Providers ter, pulse oximeter, glucometer, etc. or
can use a variety of high-tech medical other technology that allows an interperipherals to see and hear everything face to the patient to share input with
that they would be able to see and hear the provider. Common use of remote
if the patient was in the same room (e.g. monitoring is for patients with chronic
electronic stethoscope, e-otoscope, etc.) conditions such as diabetes, congestive
There is a wide range of tools available heart failure, asthma, and pulmonary
for interactive videoconferencing which diseases.
can be used for a variety of purposes
In New York, patient monitoring
in both clinical and non-clinical envi- must be for the treatment and manageronments. Entrepreneurs are busy at ment of medical conditions that require
work creating new and advanced tech- frequent monitoring. The law defines
nologies for use in videoconferencing some of the conditions, but does not
settings.
limit them. In New York, remote monitoring can include mental or behavioral
Telehealth and the
problems. In addition, the monitoring
Physician–Patient Relationship
must be ordered by a licensed phyAn issue of contention (for prescrib- sician, a licensed nurse practitioner,
ing medication) is what constitutes a or a licensed midwife. The New York
patient provider relationship and how law also states that for remote patient
is that relationship created. Can it be monitoring, the provider and patient
created by the use of face-to-face vid- must have a “substantial and ongoing
eoconferencing or is an in-person exam relationship.”9 What constitutes a “sub-
stantial and ongoing relationship” is not
defined under the law.
Typically, the data (blood pressure,
weight, etc.) obtained by the monitoring equipment is sent to a central
location where it can be evaluated by
a healthcare provider or team. The
results are monitored and the healthcare professionals act on the information received as part of the treatment
plan. Use of remote monitoring can
reduce the costs of unnecessary hospital admissions or readmissions, length
of hospital stays, and emergency visits. In addition, allowing monitoring
from the patient’s home allows older
and disabled patients to avoid having
to be admitted to skilled nursing facilities and improves the quality of life
for the patient. For now, a patient’s
home is only recognized as an originating site for remote patient monitoring.
Federal Adoption of Telehealth
Other examples of the increased
acceptability of telehealth include
changes that are occurring at the
Centers for Medicare and Medicaid
Services (CMS) and the Department of
Veterans Affairs (DVA).
CMS will now permit Next Generation
Accountable Care Organizations,
(ACOs) a new payment and delivery
care model, to use and be reimbursed for
telehealth services. Under the standard
fee for service Medicare payment rules,
telehealth reimbursement requires the
patient to live in a rural area and use
an approved healthcare facility.10
The Department of Veterans Affairs
(DVA) is also improving its reach to
beyond the 690,000 veterans that were
helped in the 2014 fiscal year through
telemedicine services. A recent DVA
reform bill has authorized the DVA to
accelerate deployment of telemedicine
services. This is particularly significant
to the aging and disabled veterans who
have difficulty getting to DVA hospitals. Among the specialized services,
the DVA intends to offer telecardiology,
telementalhealth, telesurgery, and telerehabilitation.11
Another developing issue associated
with telemedicine is license portability.
In an effort to make telemedicine work,
particularly in rural areas with close
state boarders, the Federation of State
Medical Boards (FSNB) is leading the
way to establish an Interstate Medical
Licensure Compact.
See TELEHEALTH, Page 19
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The HIPAA Security Rule: Your Best Defense
Against Cybersecurity Liabilities
It seems that every day there is in combination with other data defined
another story of a cyberattack in the as private information, such as a social
news. Big-name companies targeted by security number, driver’s license number,
or credit or debit card number.6
hackers in order to steal confidential information or disrupt
Under the NYS Act, a busiservice include Home Depot,
ness is required to notify resTarget, JPMorgan Chase, and
idents “in the most expedient
Sony. Besides the economic
time possible and without unreaand reputational fallout that
sonable delay” by either written
occurs with each data breach,
notice, electronic notice, or telecompanies are now facing
phone notification.7 Moreover,
shareholder derivative actions,
notice must include a descripclass actions and significant
tion of the categories of informaregulatory liability from federtion that were, or are believed
al and state agencies that have
to have been, acquired. The
exponentially ramped up their
New York Attorney General,
John J. Cooney
enforcement efforts concerning
the Consumer Protection
data breaches.
Board, and the State Office of
Data breaches and the related risks Cyber Security and Critical Infrastructure
and liabilities are nothing new for enti- Coordination must also be notified.8
ties regulated by the Health Insurance
Finally, following President Obama’s
Portability and Accountability Act announcement earlier this year, Attorney
(HIPAA). There are numerous regula- General Eric T. Schneiderman formally
tions and affirmative responsibilities announced that he will propose legislaassociated with safeguarding protected tion to significantly expand the definition
health information (PHI) and electron- of private information, and to impose
ic protected health information (EPHI), affirmative obligations on entities to safeand reporting of data breaches. Non- guard such private information through
compliance and with HIPAA can lead to appropriate technical, administrative
a range of U.S. Department of Health & and physical safeguards and to notify
Human Services, Office for Civil Rights residents in the event of a cyberattack
(OCR) enforcement and penalties.
or data breach.9 In other words, whether
In other words, a HIPAA-regulated under the current NYS Act, or a signifientity is already accountable for the pro- cantly enhanced NYS data privacy law, a
tection of its industry data. One could HIPAA-regulated entity must safeguard
assume that it should not have to worry more than just health information.
about complying with other federal and
HIPAA Standards
state regulations concerning data secufor Protecting Privacy
rity and reporting of data breaches. That
would be a wrong assumption.
Luckily for HIPAA-regulated entities,
there is already a set of national stanState and Federal Liability
dards that, if complied with, will provide
for Privacy Breaches
a roadmap to safeguard private informaFor instance, the Federal Trade tion to comply with HIPAA, as well as to
Commission (FTC) has taken the position mitigate regulatory liability under curthat its broad powers to regulate unfair rent or proposed federal and state laws.
and deceptive practices, under Section 5 The HIPAA Security Rule (Security Rule)
of the FTC Act, 15 U.S.C. § 45, include contains a set of security standards dividjurisdiction of the security and privacy ed into the same categories as Attorney
practices of HIPAA-regulated entities.1 General Schneiderman announced earIndeed, the FTC appears to be the anoint- lier this year: technical, administrative,
ed agency when it comes to enforcing and physical safeguards.10
privacy across all industries.
As an initial step, the Security Rule
For example, on January 12, 2015, requires that entities conduct a risk
President Obama made the first presi- assessment of their organizations to idendential visit to the agency since 1937 to tify vulnerabilities and implement the
announce that consumer privacy initia- aforementioned technical, administrative
tives would be one of his top priorities and physical safeguards.
in 2015.2 Moreover, in March, the FTC
Examples of technical safeguards
provided Congressional testimony on pro- within the Security Rule are encrypting
posed data security legislation that would EPHI being stored and/or transmitted,
provide a federal standard for data secu- maintaining audit logs to record activity,
rity and reporting of breaches.3 Notably, and enforcing authentication controls to
the proposed legislation provides the FTC verify that an employee is authorized to
with enforcement authority along with access the EPHI.11 Administrative safestate attorney generals over violations of guards include policies and procedures,
data security requirements or consumer assignment of data security responsibilinotification provisions.4
ty, and employee training.12 With regard
In sum, the writing is on the wall. to physical safeguards, an entity must
HIPAA-regulated entities are subject to have measures to account for transfer,
investigations and enforcement actions removal, disposal, and re-use of EPHI.
for privacy and security breaches by both They must also have protocols to restrict
the OCR and the FTC.
physical access to workstations, laptops
Moreover, a HIPAA-regulated entity and devices, and to recover off-site commust also comply with the New York puter backups.13
State Information Security Breach and
It is highly recommended that the
Notification Act (NYS Act).5 HIPAA reg- organization retain a team, consisting
ulates the safeguarding and reporting of of counsel and their trusted information
data breaches concerning PHI and EPHI, technology partners, to conduct a risk
while the NYS Act provides New York assessment and ensure proper identifiresidents with the right to be notified cation and implementation of the aforewhen a data breach has resulted in the mentioned safeguards and cybersecurity
exposure of their personal information best practices across industries, such as
a written information security program
(WISP). The findings of the risk assessment would be shielded by the attorney-client privilege.
Moreover, even the “addressable”
HIPAA security standards, which are
provided to give an entity some flexibility
for implementation, should be treated
as “required” because it is likely that
the “addressable” security standards will
become required under either new state
or federal regulations. In other words,
given the proposed federal and state
initiatives and increased enforcement
actions, a HIPAA-regulated entity will
spend more time and money documenting
a legitimate reason for not implementing
the safeguard, rather than putting the
necessary protection in place.
Conclusion
Given the long-standing and proven HIPAA standards, state and federal agencies are now adopting some of
the same standards. Thus, a HIPAAregulated entity should comply with the
Security Rule in full and for all data
rather than just PHI or EPHI. However,
if a HIPAA-regulated entity has not yet
complied with the Security Rule, it is
far from alone. According to recent estimates, two-thirds of HIPAA-regulated
entities have not completed an accurate
risk assessment and, thus, are failing to
safeguard the data. In other words, it is
not too late to protect your organization.
John J. Cooney, Esq. serves Of Counsel
to Ruskin Moscou Faltischek where he is
chair of the Firm’s Cybersecurity and Data
Privacy practice group. He is also a member
of the Firm’s Health Law Department and the
White Collar Crime and Investigations practice group. Prior to becoming an attorney,
Mr. Cooney was trained as a software engineer and had over a decade of experience
analyzing and developing technology solutions for Fortune 500 companies. He can be
reached via e-mail at jcooney@rmfpc.com.
1 See In re LabMD, Inc., FTC, No. 9357, dismissal
denied (Jan. 16, 2014).
2 President Barack Obama, Remarks at the
Federal Trade Commission (Jan. 12, 2015),
at https://www.whitehouse.gov/the-pressoffice/2015/01/12/remarks-president-federal-trade-commission.
3 Prepared Statement of the Federal Trade
Commission on Discussion Draft of H.R.__, Data
Security and Breach Notification Act of 2015,
Before the Committee on Energy and Commerce,
Subcommittee on Commerce, Manufacturing, and
Trade, United States House of Representatives,
113th Cong. (2014).
4 H.R. 1770, 114th Cong. (2015).
5 New York Information Security Breach and
Notification Act, codified as amended at Gen.
Bus. L. § 899-aa, and State Tech. L. § 208.
6 Gen. Bus. L. § 899-aa.
7 Id.
8 Id. (if more than 5,000 New York residents are
affected, various consumer reporting agencies
must also be notified).
9 A.G. Schneiderman Proposes Bill To Strengthen
Data Security Laws, Protect Consumers From
Growing Threat Of Data Breaches, Jan. 15, 2015,
http://www.ag.ny.gov/press-release/ag-schneiderman-proposes-bill-strengthen-data-security-laws-protect-consumers-growing.
10 45 CFR § 164.304.
11 45 CFR § 164.312.
12 45 CFR § 164.308.
13 45 CFR § 164.310.
10
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Nassau Lawyer
Health Care Law
Representing Clients with Mental Illness
Attorneys in all areas of practice
often confront not only clinical mental
health issues, but also related legal
mental health issues when meeting with potential or current clients.
Whether a matrimonial attorney is representing a mentally ill parent fighting
for custody, a landlord is dealing with
complaints about a mentally ill tenant,
or a criminal attorney is counseling a
mentally ill defendant, it is likely that
attorneys across all practice areas will
come across legal mental health issues
at some point in their career.
Unfortunately, the stigma surrounding mental illness can often lead to discrimination and prejudicial behavior.
In too many cases, the lack of education
about the intricacies of mental illness
among attorneys, judges, court personnel and other parties to an action can
lead to fear, prejudice and discrimination toward anyone struggling with a
mental health problem.1 The following
is an overview of how mental health
legal issues overlap with many other
areas of legal practice and highlights
the importance of these issues.
Matrimonial/Family Law
When the court considers questions
of child custody it must make every
effort to determine what is in the best
interest of the child.2 Although not
determinative, the mental health and
fitness of a parent is a relevant factor to
be considered as part of this analysis.3
The parents in a contested custody
case may put their own or the other
spouse’s physical and/or mental condition at issue. When the question of
parental mental health is presented it
is important that all parties, attorneys
and the court understand the nature of
the illness or disorder and how it may
or may not affect the individual’s parenting abilities. In New York and many
other states, the appointment of a neutral forensic psychiatrist or psychologist
is now essentially required in any custody litigation where parental fitness is
questioned in order to provide the court
with an unbiased professional opinion.4
There is a significant need to ensure
that the court receives scientifically
valid mental health information, and
that the court has the ability to evaluate the validity of the expert’s opinion.
It is important for matrimonial
attorneys and their clients to understand the rules of confidentiality and
access to mental health records under
the Health Insurance Portability and
Accountability Act (HIPAA) and related
pertinent state mental hygiene laws.5
The mental health professionals who
may treat a client, including psychiatrists, psychologists, social workers,
and others, are required to keep all
conversations and records confidential
unless given permission to disclose such
information.
However, when custody is at issue,
there are exceptions to this rule and no
privilege is absolute.6 For example, the
judge can order that written treatment
records be provided to the forensic evaluator, other parties and/or the court.
Additionally, information that a client
provides to a court-appointed mental
health professional or forensic evaluator is not confidential. That individual’s
role is to investigate and report back to
the court to assist the court in making
a custody decision.
Carolyn Reinach
Wolf
Jamie A.
Rosen
Criminal Law
Individuals suffering from a mental
illness are abundant in the criminal
justice system. In fact recent statistics
suggest that as many as one-third of
all inmates suffer from serious mental
illness.
The recidivism rates among these
individuals is rather high, in part
because of the court’s failure to recognize mental illness as a factor that
contributes to their continued criminal
involvement and in larger part because
there are no facilities or clinical interventions that assist on any substantive
level. Long-term mental health care
is almost nonexistent in the criminal
justice system. Further, the current
Mental Hygiene Law in New York that
makes it difficult to involuntarily commit a mentally ill person to a hospital
psychiatric unit, leads to an increase in
the number of mentally ill persons in
the criminal justice system.
Specialized courts for individuals
with mental illness, such as mental
health courts, are designed to divert
these individuals from the criminal justice system and ensure that they receive
the proper mental health treatment.
The Nassau County Mental Health
Court Program was established in 2008
“to provide a more effective response to
the specific challenges posed by mentally ill criminal defendants”.7 This court
orders defendants with serious mental illnesses (such as schizophrenia or
bipolar disorder) to participate in community based treatment and monitors
their compliance with treatment, as an
alternative to incarceration.8
However, space in these programs
is limited. Admission to the Mental
Health Court rests entirely in the discretion of the prosecutor which may
present additional obstacles for criminal defendants to access meaningful treatment. Additionally, criminal
defendants may be deemed too ill for
Mental Health Court. Unfortunately, it
seems jails have become institutionalized replacements for in-patient psychiatric care facilities.
Landlord/Tenant Law
Under federal law, tenants suffering
from a mental illness or other disability have the right to apply for and live
in a rental unit regardless of their
impairment. Landlords, condominium
boards and cooperative corporation
boards of directors face special challenges when dealing with unit owners
or tenant-shareholders who suffer from
mental illness, psychological disorders
and/or substance abuse. Landlords and
building owners must be cognizant of
any discriminatory housing practices in
order to avoid violating such laws.
Co-op and condo boards have to
be careful not to violate any federal
laws that protect mentally ill tenants,
such as the Fair Housing Act or the
Americans with Disabilities Act.9 The
federal Fair Housing Act and the Fair
Housing Amendments Act state that
landlords cannot discriminate against
tenants or prospective tenants because
of a disability.10 The law protects persons with a mental or physical disability that substantially limits a person’s
ability to perform one or more major
life activities; or a person that has a
record of the disability; or a person
that is considered by others as having
the disability.11 Protected disabilities
include mental illness, certain drug
addictions, mobile, visual and hearing
impairments, developmental disabilities, and alcoholism, among others.
Additionally, landlords are prohibited from asking discriminatory questions about whether an individual has
a disability or the severity of that disability. Issues may arise as to reasonable accommodations, modifications to
a rental unit, and situations where a
tenant may pose a direct threat or risk
of harm to him or herself or other individuals.
Early intervention by an attorney
experienced in the mental health legal
landscape can provide guidance in navigating the frequently complex laws
relating to intervention in situations
involving persons with mental illness
and/or substance abuse issues.
Health Care Proxies
and Powers of Attorney
When meeting with a potential or
current client, questions may arise as
to who can make medical or financial
decisions for an individual and how a
family can ensure that an individual is
financially taken care of and protected
from abuse. The law allows for several
avenues by which other family members or trusted individuals can make
decisions for an individual suffering
from a mental illness.
A Health Care Proxy is a legal document that allows an individual, the
Principal, to appoint a trusted individual, such as a family member or close
friend, as his/her Agent, to make health
care decisions in the event that the
Principal loses the ability to make decisions for him or herself.12 The Principal
must have capacity in order to validly
execute an advanced directive such as a
Health Care Proxy.13 Hospitals, doctors
and other health care providers must
follow the Agent’s decisions as if they
were the Principal’s own.
In the event that the individual
lacks the capacity to appoint an agent,
the Family Health Care Decisions Act
allows for family and/or friends to make
decisions even if the individual does not
execute a Health Care Proxy.14 This Act
creates a hierarchy of decision makers
including a legal guardian, spouse or
domestic partner, adult child, parent,
brother or sister, or close friend.15 It is
important to note, however, that neither an Agent nor Surrogate can make
decisions to involuntarily hospitalize
an individual or force the individual to
take medication or related treatments
over his/her objection.
The preparation and execution of a
Durable Power of Attorney is one way
to ensure that an individual’s finances
are protected, allowing another individual the ability to make financial decisions on behalf of the mentally ill individual.16 In New York, a valid Power of
Attorney necessitates the signature of
a principal with capacity.17 “Capacity”
means the ability to comprehend the
nature and consequences of the act
of executing and granting, revoking,
amending or modifying a power of attorney or any provision in a power of
attorney, or the authority of any person
to act as agent under a power of attorney.18 A Power of Attorney authorizes
the Agent, called an “Attorney-in-Fact”
to make all or only specific financial
decisions while the person still has
capacity and also when that person
loses capacity.
Wills and Trusts
Another option for protecting an
individual’s assets is the creation of
a Supplemental Needs Trust.19 A
Supplemental Needs Trust enables a
person under a physical or mental disability, or an individual with a chronic
or acquired illness, to have, held in
Trust for his or her benefit, an unlimited amount of assets.20 This tool is very important for protecting access to government benefits.
Any assets placed in this kind of trust
will not affect an individual’s eligibility
for Medicaid, Social Security Disability,
or Social Security Income provided that
the funds are used to supplement not
supplant benefits already received. In
a properly-drafted Supplemental Needs
Trust, those assets are not considered
countable assets for purposes of qualification for certain governmental benefits.
A Last Will and Testament is a legal
document that expresses an individual’s wishes regarding his/her assets and
the beneficiaries who should receive
them. In order for a will to be valid,
the testator must have testamentary capacity, or mental capacity.21 An
individual lacks testamentary capacity
if he is unable to understand both the
extent and nature of his property, the
natural objects of his bounty, and the
disposition of that property, and unable
to relate these elements to one another
and form an orderly desire regarding
disposition of the property.
Proper estate planning tools can help
an individual and his/her family protect
assets and aid in providing for loved
ones with special needs. When drafting
documents such as a trust or will, it may
be prudent to include specific provisions
about distributions to incapacitated persons, or substance or alcohol users, such
as allowing distributions to be made to a
guardian or the requirement of drug or
alcohol testing and treatment before a
distribution can be made.
Caring for individuals with mental
illness is one of the greatest healthcare
challenges in our society. In addition to
the clinical mental health issues there
are multiple legal mental health issues
that affect all legal practice areas. With
the assistance of legal professionals,
who have the knowledge of the mental
health statutes and judicial decisions,
and the experience, in both the court
room and the community, it is possible
to achieve a positive legal outcome for
those who struggle with mental health
issues.
See MENTAL, Page 19
A Dinner Dance First
VIP Honoree Reception
At the Nassau County Bar Association’s 116th Annual Dinner Dance, honored members
of our Association celebrated their 50 and 60 year anniversary of admission to the bar. For
the first time in the Dinner Dance history, the participating members were honored with
an exclusive VIP Reception ceremony and cocktail hour. Wearing their medallions, the
Honorees were individually recognized when President Steven J. Eisman called up each
one and read the highlights of their career accomplishments. NCBA then President John
P. McEntee presented each individual with a certificate and took a commemorative photo
with the Honoree and their escort. The Honorees’ family and friends were present to enjoy
the ceremony and private cocktail hour. Following the reception, each Honoree, and their
escort, was individually announced as they entered the main ballroom. They were greeted
by applause from the 550 guests attending the Dinner Dance. (Photos by Hector Herrera)
NCBA President Steven J. Eisman presents
then-President John P. McEntee with the
President’s Plaque.
Then-NCBA President John P. McEntee
presents Chief Administrative Judge of New
York State, the Hon. A. Gail Prudenti, with
the Distinguished Service Medallion.
(l-r)Then-NCBA President John P. McEntee, President-Elect Martha Krisel, Vice President
Steven G. Leventhal, NCBA President Steven J. Eisman and Past President Peter J. Mancuso.
50 Year Honoree and NCBA
Past President Andrew J.
Simons with Eileen Simons.
Brian Skarlatos and NCBA
Treasurer Elena Karabatos
(l-r) NCBA Past President Marc C. Gann, Hon.
Christopher G. Quinn, NCBA Past President Hon.
Susan T. Kluewer and NCBA Secretary Richard
D. Collins.
50 Year Honoree Melvyn B.
Ruskin and Hon. Lea Ruskin
(l-r) Paul Simon, Hilary Simon, Lyuba DiFalco,
Michael DiFalco and Andrea M. Brodie
(l to r) Faith Skelos and Hon. Peter B. Skelos with Eighteen NCBA Past Presidents
Dinner Dance Event Sponsor Jeffrey D. Forchelli and assisted Past President Peter J.
Mancuso with the Toast to Domus.
wife Sadie Forchelli.
Nassau Lawyer
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In Brief
Member Activities
firm with offices in White Plains,
New York City and Rochester,
announced that it has expanded
its health care practice with the
addition of Gary S. Sastow to
the team at their White Plains
office.
James M. Wicks, a commercial litigation partner at Farrell
Fritz, P.C. will begin his one-year
term as Chair of the NYSBA’s
Commercial & Federal Litigation
Section. Mr. Wicks also serves as
Co-Chair of the Ethics
&
Professionalism
Committee of NYSBA’s
Section on Commercial
& Federal Litigation.
Commercial litigation
associate Jeremy M.
Corapi will become
the Section’s Secretary.
Associate Robert M.
Harper, who practices
in the area of estate litigation, has been elected
Marian C. Rice
to the Suffolk County
Bar Association’s Board
of Directors.
Harold M. Somer of Harold
M. Somer, P.C. has been honored
for his invaluable pro bono contributions. On Law Day, Mr. Somer
received the New York State
Bar Association 2015 President’s
Pro Bono Service Award for the
Tenth Judicial District. He was
also one of the recipients of the
Town of Hempstead 2015 Make A
Difference Award.
Ruskin Moscou Faltischek, P.C.
has announced that the Honorable
C. Raymond Radigan became
a Fellow of the American College
of Trust and Estate Counsel, an
organization of more than 2,600
trust and estate lawyers and law
professors who have been elected by their peers in recognition of
having made outstanding contributions to the practice of trust and
estate law. Judge Radigan, retired
Nassau County Surrogate, serves
as counsel to the Trusts & Estates
Department. John J. Cooney,
Of Counsel and Chair of the firm’s
Cybersecurity and Data Privacy
Practice Group, was featured on
the television program Exploring
Critical Issues Show: Data Breaches
and Privacy on May 24, 2015.
Meyer, Suozzi, English & Klein,
P.C.’s Managing Attorney Lois
Carter Schlissel announced the
Firm’s fifth annual scholarship
awards to three Long Island veterans who served in Iraq and
Afghanistan and who are continuing their education after returning from military service. This
year the scholarship committee
chaired by NYSBA and NCBA
Past President A. Thomas Levin
awarded scholarships to Natasha
Gibson of Valley Stream, a veteran of the Army National Guard;
Agustin Cabrera of Massapequa
who was deployed to Iraq during
Operation Iraqi Freedom and
Operation Enduring Freedom
with the United States Army; and
Harrington Newman who served
in the United States Army.
Daniel J. Baker
has joined Certilman
Balin Adler & Hyman,
LLP, as a Partner in
the Real Estate and
Land Use and Zoning
Practice Groups. Mr.
Baker was formerly a Partner at the
firm of Sahn Ward
Coschignano & Baker,
PLLC. He concentrates
his practice in the areas
of real estate, zoning
and land use, and environmental law.
Robert J. Kurre of Kurre
Schneps LLP has become a member of the Council of Advanced
Practitioners of the National
Academy of Elder Law Attorneys,
an invitation-only council for
“AV” Preeminent rated, advanced
practitioners.
Continuing its fundraising
initiatives, Vishnick McGovern
Milizio LLP raised over $10,000
at the National MS Society-Long
Island Chapter’s Walk MS held at
Jones Beach.
Capell Barnett Matalon &
Schoenfeld LLP is pleased to
announce that Renato Matos, a
partner in the firm, was selected
as a New York Law Journal Rising
Star, one of fifty lawyers under the
age of forty who have established
a record of accomplishments and
demonstrated that they are top
contributors to the practice of law
and their communities. Gregory
L. Matalon, a partner in the firm,
was quoted in a press release from
the office of Congressman Steve
Israel regarding the introduction
of a Bill that would ban credit
discrimination against LGBT individuals.
Leslie Tayne, of Melvilleheadquartered financial law firm
Tayne Law Group, P.C. provided some free professional debt
insight and advice at a book signing for her first book, Life & Debt,
at Book Revue in Huntington. A
portion of proceeds collected from
sold copies of her Life & Debt book
are being donated to the Guide
Dog Foundation of Smithtown.
The Nassau Lawyer welcomes submissions to the IN BRIEF column
announcing news, events and recent
accomplishments of its members. Due
to space limitations, submissions may
be edited for length and content.
Hawkins Delafield & Wood
LLP is pleased to announce that
William J. Jackson has become
a partner of the firm.
The In Brief column is compiled
by Marian C. Rice, a partner at the
Garden City law firm L’Abbate Balkan
Colavita & Contini, LLP where she
chairs the Attorney Professional
Liability Practice Group. In addition
to representing attorneys for nearly
35 years, Ms. Rice is a Past President
of NCBA.
Brown, Gruttadaro, Gaujean
& Prato LLC, a full-service law
PLEASE E-MAIL YOUR SUBMISSIONS
TO: nassaulawyer@nassaubar.org
with subject line: IN BRIEF
12
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Nassau Lawyer
(Photos by Hector Herrera)
14
NCBA then-President John P. McEntee (r) presents Hon. Judiciary Committee Chair Rosalia Baiamonte received NCBA Past President Peter H. Levy (l) was presented with the
Peter B. Skelos with the President’s Award.
the Board of Directors’ Award from then-President Frank J. Santagata Distinguished Past President’s Award by
John P. McEntee.
then-President John P. McEntee.
MEMBERS ...
Association at the sole discretion of
the President. One of Immediate
Past President McEntee’s top priorities for his term was to enhance
the Association’s Lawyer Assistance
Program (LAP), to provide expanded
awareness, counseling and support to
attorneys struggling with personal and
professional challenges. Justice Skelos
stepped in to help fashion a solution to
provide funding through the Office of
Court Administration for LAP to continue its superb work and counseling
services.
“LAP is the most important service
of this Association,” McEntee said.
“Justice Skelos’ ability to achieve a
consensus with all parties involved
so that we could obtain the necessary
funding is an example of true leadership.”
Following approximately 15 years as
a trial attorney in municipal and private practice, Justice Skelos has served
as a Judge of the New York State
District Court, a Justice of the Supreme
Court, an Associate Justice of the
Appellate Division and was re-elected
to the Supreme Court and re-appointed
to the Appellate Division in 2012. He
has authored numerous scholarly opinions and is recognized as an insightful
questioner from the bench.
Active at the Association, Justice
Skelos was elected to serve a three year
term as a Director on the NCBA Board
of Directors, beginning in June. He
also has served three terms as admin-
HIPAA ...
behalf, your client can waive HIPAA
and all diagnoses may be presented to
the court. However, the case law does
not provide guidance as to what is
acceptable to put in the initial motion
papers for an opposing party’s guardian
ad litem when a judge has not had the
opportunity to make a determination in
person.
According to some courts, the
motion papers may contain the title of
the disorder that the defendant suffers
from, such as bipolar disorder, and
that the defendant has been hospitalized or resides in a nursing home due
to this disorder.8 Setting forth facts
istrative co-chair of the We Care Fund,
part of NCBA’s charitable efforts, and
he is a frequent lecturer and panel
member for the Nassau Academy of
Law Continuing Legal Education programs.
Directors’ Award Honoree
Rosalia Baiamonte
Rosalia Baiamonte, outgoing chair
of the Judiciary Committee, received
the Directors’ Award, which is voted
on by the NCBA Board of Directors.
One of the most important services for
the community provided by NCBA is
screening candidates who are running
for judicial office, as well as certified
arbitrators and mediators. This year,
Baiamonte oversaw a record 51 screenings including attorneys who serve as
impartial mediators and arbitrators
on NCBA’s Mediation and Arbitration
Service.
“Rosalia did an outstanding job,
making sure all of the prospective
candidates were evaluated properly
and fairly,” NCBA President John
P. McEntee said. “She maintained
the professionalism and integrity of
the process and was able to perform
extraordinary work under difficult circumstances.”
Baiamonte focuses her practice on
matrimonial and family law. She served
as an arbitrator in the Early Neutral
Evaluation Program in the Nassau
County Supreme Court, and currently
serves as a Discovery Referee in the
Supreme Court Matrimonial Center as
well as a Part 137 Fee Arbitrator for
the 10th Judicial District. She earned
her law degree at Syracuse University
College of Law.
regarding the defendant’s living conditions, whether another person cares
for the defendant on a daily basis, and
his or her general daily mental state
(i.e. discussion of conspiracy theories,
paranoid delusions, general combative
nature, chronic irrational and agitated state attributable to alcohol and
substance abuse) will be sufficient for
the court to appoint a guardian ad
litem.9
HIPAA violations have not been
alleged where the client’s affidavit
states limited facts “upon information
and belief.” Examples include general
allegations that:
• Upon information and belief, she is
most likely not aware of where she
is and why she is in the nursing
home.
Appointed to the NCBA Judiciary
Committee in 2009, Baiamonte is
serving her third consecutive twoyear term, currently as the Chair.
She is a director on the Board of the
Association, and next year will chair
the Matrimonial Law Committee,
NCBA’s largest committee. She is also
an active member of the New York
State Bar Association, currently serving as the Financial Officer of the
Family Law Section, and a co-chair
of its Continuing Legal Education
Committee. She lectures extensively
at Nassau and other bar associations,
law schools and law intern programs.
Santagata Award Honoree
Peter Levy
The Frank J. Santagata Past
President Award is presented when a
past president out of office for three
years or more remains vigorously committed in continuing to provide service to the Association. Peter Levy,
who served as President in 2008-2009,
received the award this year. “There is
no member of the Association who is
more universally respected or dedicated to the Association,” McEntee said.
In private practice for almost 30
years, Peter Levy is based in Jericho
where he concentrates in the areas of
commercial litigation, personal injury,
real estate, wills and estates. He is
a graduate of the Tulane University
School of Law and the Wharton
School of Business of the University of
Pennsylvania.
In addition to his terms as an officer and member of the NCBA Board
of Directors, Levy currently serves as
Co-Chair of the We Care Fund, part
• Upon information and belief, the
defendant cannot adequately represent her rights and interests in
the above-captioned action. • Upon information and belief, the
defendant has compromised mental capacity and is unable to handle her affairs. Lastly, it behooves the movant to
offer the defendant’s medical records to
the court for in-camera review to afford
the court an opportunity to make a
suitable inquiry as to whether a guardian ad litem is necessary to protect the
defendant’s rights. It appears that any
further disclosure of the defendant’s
physical and mental conditions in the
movant’s public document would violate
HIPAA.
Melanie I. Wiener, Esq. is the Director of
of the Nassau Bar Foundation, the
charitable arm of the Bar Association,
and is Chair of the NCBA’s By-Laws
Committee. He also has chaired the
District Court Committee, Community
Relations Committee, County Clerk’s
Committee and General Practice
Committee. He has served as a student
mentor, Nassau Academy of Law lecturer, Grievance Committee member,
Mock Trial coach and has authored
numerous task force reports for the
NCBA.
Levy has been a member of the House
of Delegates of the New York State Bar
Association, and has chaired NYSBA’s
statewide Committee on Lawyers and
the Community. He has served on the
Board of Directors of Nassau/Suffolk
Law Services since 1994.
He has been honored many times for
his dedicated service to the Association.
Peter Levy has received the Thomas
Maligno Pro Bono Attorney of the Year,
the New York State Bar Association
President’s Pro Bono Service Award, the
Stephen Gassman We Care Award, and
the Nassau County Bar Association’s
President’s Award (twice).
“Although he has served in many
capacities at NCBA, he continues
to give of himself to make the Bar
Association a better place,” McEntee
said.
Outside of the legal profession, Levy
has been active in the youth services
community on Long Island. He has
chaired the Coalition of Nassau County
Youth Service Agencies for over 19
years and served as Board President
of the Five Towns Community Center
for 6 years. He is a former trustee of
Temple Beth El of Cedarhurst.
the Nursing Home Litigation Department at
Abrams, Fensterman, Fensterman, Eisman,
Formato, Ferrara & Wolf, LLP.
1 CPLR 1201; see also Anonymous v. Anonymous,
256 A.D.2d 90, 90 (1st Dept. 1998).
2 CPLR 1202(a)(2), (3).
3 Sarfaty v. Sarfaty, 83 A.D.2d 748, 749 (4th
Dept. 1981); Rakiecki v. Ferenc, 21 A.D.2d 741,
741 (4th Dept. 1964).
4 See Vincent C. Alexander, Practice
Commentary, CPLR 1203; Rakiecki, 21 A.D.2d
at 741.
5 Sarfaty, 83 A.D.2d at 749.
6 New York Life Ins. Co. v. V.K., 184 Misc.2d 727,
733 (Civil Ct., N.Y. Co. 1999).
7 See, e.g., In re Foreclosure of Tax Liens by the
City of Ithaca, 283 A.D.2d 703, 704-05 (3d Dept.
2001).
8 Complaint, Greenberg v. Blake, 2011 N.Y. Slip
Op. 34127(U) (Sup. Ct., Kings Co. Sep. 9, 2011),
2010 WL 10873640.
9 Riverside Park Community LLC v. Stubbs,
39 Misc.3d 1219(A), at *5-6 (Civil Ct., N.Y. Co.
2013); Anonymous, 256 A.D.2d at 90.
Nassau Lawyer
n
June 2015
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15
Saving Lives, One at a Time
LAP Director Peter Schweitzer Retires
An attorney calls the Lawyer
Assistance Program hotline (888-4086222) because she is worried that her
husband is depressed. A judge calls
concerned about the behavior of an
attorney who appeared before him.
Another call is from an attorney who
thinks his partner is drinking too much.
Another attorney is so overwhelmed
that he is considering suicide; another
was just diagnosed with a brain tumor.
For the past nine years, Peter
Schweitzer, Director of Nassau County
Bar Association’s Lawyer Assistance
Program (LAP), has answered all these
calls, 24/7, day and night. Attorneys,
judges, law students and their families have relied on him for confidential guidance when struggling with
diverse problems including alcohol and
drug abuse, gambling, mental illness,
depression and stress. After a long and
successful career capped by his NCBA
service, Peter has decided that it is time
to retire.
“We thank him for his service with
all our hearts. Replacing him will be
a daunting job,” noted Carol Hoffman,
who chaired NCBA’s LAP Committee in
2006 when Peter was hired. “Peter has
top notch credentials, depth of experience, and is highly regarded in his field.
For nine years, he has absolutely been
the heart and soul of the LAP program.”
NCBA’s LAP provides free and confidential assistance to the legal community on issues relating to alcohol and
drug abuse, gambling, depression and
other emotional and behavior issues
that affect one’s well-being and professional conduct. The strict confidentiality of communication (protected by
Judiciary Law Section 499) is essential
to the effectiveness of the program.
SURPRISE ...
Resolution Entities (“IDRE”), certified
and approved by the Department of
Financial Services (23 NYCRR Part
400 provides further insight on IDRE
as well as what providers can expect in
the future).
Notably, even if the insurer believes
that the provider overcharged, the
insurer must still pay the provider
an amount it deems to be reasonable.
Insurers may not submit a dispute
to IDRE if they have not paid providers. Therefore, providers should not be
denied payment outright for covered
services.
If the provider finds the payment to
be unreasonably low and no resolution
can be reached, either the provider
or insurer may submit the dispute to
the IDRE. The IDRE reviewer must
be free of conflicts of interest with the
participating parties and must have
training and experience in healthcare
billing and reimbursement. Moreover,
all determinations must be made in
consultation with a licensed physician
in the same or similar specialty as the
provider at issue. Each IDRE must also
appoint a “medical director” who is a
licensed physician in New York.4
The parties must submit documentation in support of their position within
five business days of receiving an arbitration notice from the IDRE. If the req-
(l) Peter Schweitzer and Thomas Bucaria, then-LAP Committee Chair.
(Photo by Hector Herrera)
“Some people can’t believe that the
cases I handle involve attorneys,” Peter
remarked. “Illness affects all of humanity, there is no discrimination. Despite
how well educated or intelligent you
are, attorneys suffer like everyone else.
They face divorce, illness, substance
abuse. No one is immune to the difficulties in life.”
Career Path
Counseling was not Peter’s first
choice. The 6 foot, 6 inch college student was a standout on the St. Francis
College basketball team. He went on to
New York University to become a professor with a doctoral grant in the History
of American Foreign Policy in the Far
East. But acquaintances convinced him
uisite information is not received by the
deadline, the IDRE will proceed without it. The IDRE will likely rely heavily on the Fair Health Database5 when
determining whose number is more
reasonable. The Fair Health Database
will be used to establish “usual and
customary cost” for the particular service at issue.6 The IRDE is supposed
to consider the following factors when
determining whose amount is more
reasonable:7
• The usual and customary cost for
the service
• Whether there is a gross disparity
between the fee charged by the
provider and (i) the fees typically
paid to the physician for the same
service and (ii) the amount typically paid by the health insurer
for the same service in the same
geographic region
• The physician’s usual charge for
similar services
• The physician’s training, education
and experience
• The circumstances and complexity
of the case at hand
• Individual patient characteristics
The regulations do not contemplate
a “splitting the difference approach” by
the IDRE. Whoever proposed the more
reasonable number, as determined by
the IDRE, will prevail. The loser will
have to pay the IDRE’s fees,8 unless the
parties are able to settle, in which case
they will split the fees.
The entire process is designed to last
30 days from start to finish, including
to take a job with New York City government in the Human Resources department, where he found his calling. His
natural skills in listening, motivation
and crisis led him to being assigned to
work with alcoholics struggling with
the disease. He was eventually promoted as the Director of the Employee
Assistance Program for the Department
of Correction. Under Mayors Lindsay
and Beame, Peter occasionally served as
the overnight “Crisis Mayor” (“Basically,
at night I was the point person for 7
million people in the city,” he smiles.)
He also co-founded the Consortium of
NYS Municipal Employee Assistance
Program professionals. After 9/11, Peter
performed critical incident stress management with the Port Authority of NY
any settlement discussions encouraged
by the IDRE.9 The IDRE is supposed
to recommend settlement if it believes
that an amicable resolution is likely or
if the amounts presented by both sides
appear to be unreasonable. Needless
to say, settlement is a far less risky
proposition given the “all or nothing”
approach adopted by the Law.
The proposed regulations do not provide for any appeal rights and state that
an IDRE will not reconsider determinations even if it subsequently receives
additional information. IDRE decisions
are “binding, but admissible in any
court proceeding between the health
care plan, physician or patient, or in
any administrative proceeding between
[the] state and the physician.”10
Insurance companies who fail to
make the proper disclosures or otherwise violate the new Insurance Law sections are subject to the penalties already
in effect with respect to Insurance Law
violations.11 Those penalties include,
without limitation, civil fines and being
found guilty of a misdemeanor. Failure
to make the proper disclosures will also
result in non-participating providers
being unable to demand payment from
otherwise billable patients.
Possible Amendment
It is important to note that 23
NYCRR Part 400, the regulations
which took effect on March 31, 2015,
were passed on an “emergency basis”
and will be revised in the near future.
and NJ, working with pilots and employees at major airlines at the three regional airports. He then went to Nassau
County Community College helping faculty, staff and students, before coming
to NCBA.
Over time, the former college basketball star became NCBA’s LAP point person. Peter spearheaded the enormously
successful Unemployed/Underemployed
group to provide a safe haven for attorneys in transition and offer motivation
and mutual support. Peter even helped
them rewrite their resumes. His reputation widened to neighboring Suffolk and
Queens, and beyond.
Lee Beck, a founding attorney of
the Lawyer Assistance Program, added,
“Peter has a great calming influence.
He’s heard it before and tells them that
they will get through it. And people
have to hear that.”
“Peter has enthusiastically and skillfully represented Nassau County on
both the state and national stages,”
remarked Henry Kruman, Chair of
the New York State Bar Association
Lawyer Assistance Committee. “His
commitment and dedication are unfailing. There are many attorneys, now
back at work or reunited with their
families, who have been touched by
Peter.”
“Our ultimate goals are to help attorneys, maintain the integrity of the profession and protect clients,” Carol said.
“Along the way, this program saves
lives.”
Peter has saved lives. For this, and
so much more, we express our deepest
gratitude to Peter and wish him the
very best in the years ahead.
For confidential assistance call LAP
888-408-6222.
The Department of Financial Services
intends on accepting additional comments once it releases a revision of the
proposed regulations, before the regulations are ultimately finalized. The
amendments to the statutes are considered final, for all intents and purposes.
The Law is drastically altering the
out-of-network landscape. These changes will likely have a considerable impact
on the practices and reimbursements
of out-of-network providers. With the
changes having taken effect on March
31, 2015, out-of-network providers
should be aware of how they might affect
their practices and prepare accordingly.
David A. Zarett is a founding partner of
Weiss, Zarett, Brofman & Sonnenklar, P.C.
and former co-chair of the NCBA Hospital
and Health Law Committee. Akshara Kannan
is an associate at Weiss, Zarett, Brofman &
Sonnenklar, P.C., a boutique-sized law firm
located in Nassau County, which represents
physicians and other healthcare providers
in their business, regulatory and professional affairs. In particular, they assist clients with issues relating to out-of-network
coverage, health insurance audits and other
business and regulatory matters.
1 Fin. Serv. Law § 603(h)(1); 23 NYCRR §
400.2(u).
2 Pub. Health Law § 24.
3 Pub. Health Law § 23.
4 23 NYCRR § 400.3(a)(1)(iv).
5 See www.fairhealthconsumer.org.
6 23 NYCRR § 400.2(v); http://www.fairhealthny.
org/AboutTheLaw.
7 Fin. Serv. Law § 604.
8 23 NYCRR § 400.3(b).
9 23 NYCRR § 400.8(g).
10 Fin. Serv. Law §§ 605(c) and 607(c).
11 Ins. Law §§ 109, 2601(6), (7).
16
n
June 2015
n
Nassau Lawyer
Nassau County Bar Association President Steven J. Eisman, with Kathy Eisman, takes the oath of office
administered by Hon. Peter B. Skelos.
NCBA President-Elect Martha Krisel sworn into office by
Justice Thomas A. Adams.
NCBA and NAL
Installation of Officers
June 2, 2015
(l-r) NCBA Officers Secretary Richard D, Collins,
Treasurer Elena Karabatos, Vice President Steven
G. Leventhal sworn into office by Justice Adams.
NCBA Elected Directors: (standing l-r) Ross L. Schiller, Jennifer Rosenkrantz, Hon.
Sondra K. Pardes, Kevin P. McDonough, James P. Joseph, Christie R. Jacobson,
Adam D’Antonio, Hon. Peter B. Skelos sworn in by Justice Thomas Adams. (seated
l-r) Richard D. Collins, Elena Karabatos, Steven G. Leventhal and Martha Krisel.
Nassau Academy of Law Dean Mary Ann Aiello,
sworn into office by Hon. Philip Aiello Lammens.
Nassau Academy of Law Executive Board: (l-r) Associate Dean Mili Makhijani,
Assistant Dean Thomas J. Foley, Assistant Dean Daniel W. Russo, Assistant Dean
Jaime D. Ezratty, Secretary Anthony Michael Sabino, Treasurer Mary P. Giordano
and Counsel Christine T. Quigley sworn in by Justice Thomas Adams.
NCBA Student Mentoring Program’s 20th Anniversary
Founder Alan
Hodish Honored
When Dorian Glover was
a 5th grader at then-named
Ludlum Elementary School
in Hempstead, his teacher,
lacrosse coach and mentor,
Alan Hodish, taught him the
importance of giving back to
the community. Years later,
this lesson continues to ring
true for Glover, who is now a
successful attorney and recognized community service leader.
Hodish eventually left teaching to become a lawyer, but
he never stopped inspiring
young minds. Twenty years
ago he founded Nassau County
The 2014-15 Student Mentor
Volunteers
CLARKE MIDDLE SCHOOL
Hon. Ira B. Warshawsky - Liaison
Maryanne Buatti
John Catterson
Ward Fitzpatrick
Steve Gokberk
Courtney Kahoud
Erin Kowtna
Mary Lucere
Kenneth Marten
Jane O’Keefe
Jon Michael Probstein
Christopher Rogers
Fred Skolnik
Elke Stoiber
JACKSON MAIN
ELEMENTARY SCHOOL
Donna M. Brady – Liaison
Bar Association’s Student
Mentoring Program, giving
members the opportunity to
serve as positive adult role models for middle school students
at risk. At the annual Student
Mentor Luncheon on May 21,
Glover had the opportunity to
thank his teacher and mentor,
presenting him with a plaque
in appreciation for his years
of dedication, commitment and
success with the program.
Dorian brought with him his
mentee, Alexander, a current
5th grader at the now-renamed
Barack Obama Elementary
School, where Dorian serves as
the NCBA liaison for the mentoring program. In his speech,
the 10-year-old channeled the
spirit of Dorian and the value
Brice Beach
Jennifer Brown
Ray Donnelly
Robert Dougherty
David Lira
MaryEllen O’Brien-Palmieri
Olga Pettigrew
Lynn Walton
Stephen Zaino
JERICHO MIDDLE SCHOOL
Doreen Reali – Liaison
Kevin Agoglia
Anna Caraulo
Janet Nina Esagoff
Amy Haber
Troy L. Kessler
Patricia Manzo
John Reali - Liaison
Kenneth L. Robinson
Brian S. Schwartz
Steven Shulman
of having a caring and dedicated mentor.
“I wanted the audience to
hear from a young student, the
impact Alan had on me,” Glover
said. “Alan instilled in all of us
that the most important thing
we do with our lives is to give
back to the community.”
Hodish was surprised by the
special recognition. “Helping
kids is a labor of love,” he
said. “I have great empathy
and compassion for kids, and I
am honored to be able to help
them lead successful and fulfilling lives.”
Members who would like to
serve as mentors for the next
school year can contact Demi
Tsiopelas at (516)747-4070 or
dtsiopelas@nassaubar.org
Robert Strack
Joel Sweetbaum
Hon. Conrad Singer
Eun Chong Thorsen
Elan Wurtzel
OBAMA ELEMENTARY
SCHOOL
Dorian Glover - Liaison
Mark Bailey
Anna Azzu Brown
Sandra Busell
Jestina Collins
Thomas DeMaria
Greg Fishkin
Stephanie Hill
Hon. Susan Kluewer
Stuart Manzione
Michael Salomon
Charlene Thompson
Gracie Wright
Jodi Zimmerman
(l-r) Then-NCBA President John P. McEntee; current mentor (and
former student mentee of Alan Hodish) Dorian Glover; mentee
Alexander; and, Alan Hodish, founder of the Student Mentoring
Program. (Photo by Hector Herrera)
ALBERTA B. GRAY SCHULTZ
MIDDLE SCHOOL
Barbara Marra Dower - Liaison
John Ardito
Maureen Casey
Hyman Hacker
Vernadette Horne
Spencer Leitman
Deborah Levine
Anne McGinnis
Hon. Ignatius Muscarella
Linda Oliva
Ellen Pollack
Jeanne Schieck
Monte Sokol
Hon. Joy Watson
TURTLE HOOK MIDDLE
SCHOOL
Patricia Wright - Liaison
Patrick Collins
EileenDaly-Sapraicone
Barbara A. Dillon
Jeffrey DiLuccio
Hon. Tricia Ferrell
Marc C. Gann
Martin Geduldig
Hon. Sharon Gianelli
Thomas McNally
Laura Sarowitz
Sandra Stines
Frank Torres
Cherice Vanderhall
Derell Wilson
WESTBURY MIDDLE SCHOOL
Dana Boylan – Liaison
Janet Connolly
Adele Deerson
Arielle Facompre
Michael Fleming
Joey Guarino
Spike Kauffman
Geoffrey Prime
Jenna Suppon
Shirin Zarabi
WOODLAND MIDDLE
SCHOOL
Alan Hodish - Liaison
Anthony Bagnuola
Scott Fleischer
Christopher Haner
Jared A. Kasschau
Hon. Robin Kent
Abraham Krieger
Madeline LoPresti
Mark Mancher
Kristin McGrath
Edward Rosenthal
Natasha Shishov
Patricia Sokolich
Stuart Spitzer
Ayanna Thomas
DISASTERS ...
“mutual assistance between states… in
managing any emergency or disaster
that is duly declared by the governor
of the affected state(s)”.8 EMAC goes
a long way to facilitate the provision of
resources and personnel between states,
and it has been noted that emergency
medical technicians, ambulances, medical doctors, and registered nurses are
among the most commonly requested
resources in an emergency.9 However,
the limitation of liability established by
EMAC applies only to a narrow subset
of medical personnel who provide care
during emergencies.10
At the outset, EMAC is triggered
only when the governor of the affected
state officially declares an emergency.11 Most limiting, however, is that
EMAC only shields emergency medical
responders from liability if they are
officially deployed to provide medical
services under EMAC.12
EMAC provides that, “[o]fficers or
employees of a party state rendering
aid in another state pursuant to this
compact shall be considered agents of
the Requesting State for tort liability and immunity purposes.”13 EMAC
further provides that those rendering
aid under EMAC shall not be liable on
account of any act or omission taken in
good faith.14 However, persons rendering aid under EMAC are not shielded
from liability for any acts or omissions
constituting “willful misconduct, gross
negligence, or recklessness.”15
EMAC leaves many emergency
medical responders exposed to liability
for care rendered in emergency situations. Indeed, in its investigation of
the general preparation and response
to Hurricane Katrina, Congress recognized that “self-deployed personnel,”
or emergency medical responders who
act without official deployment, do so
“without proper authority, without liability protection, and without eligibility
for expense reimbursement.”16 EMAC
provides no protection to those operating outside of its auspices.
The federal Volunteer Protection
Act (“VPA”) was passed one year after
EMAC, in 1997, and, like EMAC,
applies to all responders, not just medical professionals.17 The House Report
on the VPA states that Congress was
motivated to enact this legislation, in
part, by its finding that the “willingness
of volunteers to offer their services is
deterred by the potential for liability
actions against them.”18
While more volunteers are protected from liability under the VPA than
EMAC, the VPA provides protection
from liability for only a specifically
defined sub-category of responders.
Under the VPA, “no volunteer of a
nonprofit organization or governmental
entity shall be liable for harm caused by
an act or omission of the volunteer on
behalf of the organization or entity” as
long as four conditions are met:
1. The volunteer must have been
“acting within the scope of the
volunteer’s responsibilities in the
nonprofit organization or governmental entity at the time of the act
or omission”;19
2. The volunteer also needs to have
the proper licensure, certification,
or authority to practice in the
state where he or she provides
services;20
3. The volunteer may not have partaken in “willful or criminal misconduct, gross negligence, reckless
misconduct, or a conscious, flagrant indifference to the rights or
safety of the individual harmed by
the volunteer”;21 and,
4. The harm may not have been
caused by the volunteer’s operation of a “motor vehicle, vessel,
aircraft, or other vehicle.”22
Punitive damages are recoverable in
cases with claims involving egregious
conduct.23
The VPA provides meaningful protection to “Good Samaritans” who offer
medical services in emergencies, insofar
as it encourages physicians and medical
providers to join nonprofits or government entities, through which their services can be utilized in a concerted and
organized effort. It also provides protection from liability so long as the claim
does not involve damages arising out of
grossly negligent or egregious conduct.
Importantly, however, those who
volunteer medical services upon their
own accord, and not through a non-governmental organization or government
entity, are not shielded from liability for
negligence under the VPA.
Model Legislation for State Good
Samaritan Laws
Certain medical practitioners are
also provided protection from liability where a state has enacted the
Uniform Emergency Volunteer Health
Practitioners Act (“UEVHPA”),24 the
model legislation recommended by the
National Conference of Commissioners
on Uniform State Laws.25 In response
to Hurricane Katrina and concerns
regarding the ability to respond to public
health crises, the National Conference of
Commissioners on Uniform State Laws
prepared and approved the UEVHPA in
2007.26 To date, the UEVHPA has been
enacted by fourteen states, the District
of Columbia, and the Virgin Islands.27
The UEVHPA applies to registered
volunteer health practitioners who provide health or veterinary services for a
host entity while a declaration of emergency is in effect.28 To register under
the UEVHPA, practitioners must apply
to a registration system that meets
certain criteria.29 Properly registered
volunteer health practitioners are then
shielded from most liability for any act
or omission in providing health or veterinary services.30
Under UEVHPA, volunteer health
practitioners can only be held liable for
damages if their act or omission constitutes an intentional tort or willful,
wanton, grossly negligent, reckless, or
criminal misconduct.31
Conclusion
The New York Good Samaritan Law
is clear that doctors who render volunteer medical assistance in public health
crises outside of a medical office are
held to the higher gross negligence
standard. However, good samaritans
who render volunteer assistance outside of New York State, such as the doctor and two nurses who treated patients
at Memorial Medical Center during
Hurricane Katrina, must remain vigilant of the federal and state regulations
governing their care, particularly when
providing medical assistance on their
own accord, and not through a governmental or non-governmental agency.
Whether a good samaritan will be protected from liability to the same extent
as in New York State will hinge upon
the applicable legislation of that particular state.
Jeffrey C. Gerson, Esq. is a litigation partner at Kaufman Borgeest & Ryan LLP, and
concentrates his practice in medical malpractice defense, representation of health
care practitioners before OPMC and OPD
and insurance law.
Kristina I. Duffy, Esq. is an associate at
Kaufman Borgeest & Ryan LLP in the general negligence and medical malpractice
areas.
1 Sheri Fink, The Deadly Choices at Memorial,
New York Times Magazine, p. MM28 (Aug. 30,
2009).
2 Public Health Law § 3000–a.
3 Rodriguez v. New York City Health and
Hospital Corp., 132 Misc. 2d 705 (Sup. Ct., Kings
Co. 1986).
4 S’Doia v. Dhabar, 261 A.D.2d 968 (4th Dept.
1999).
5 Emergency Medical Assistance Compact, Public
Law 104–321 (1996).
6 “EMAC Legislation”, Emergency Management
Assistance Compact, (Mar. 19, 2015), http://www.
emacweb.org/index.php/learnaboutemac/emac-legislation.
7 “What is EMAC?”, Emergency Management
Assistance Compact, (Mar. 19, 2015), http://www.
emacweb.org/index.php/learnaboutemac/emac-legislation.
8 EMAC Art. I.
9 H.R. Rep. No. 109-377, p. 250.
10 EMAC Art. VI.
11 EMAC Art. I.
12 H.R. 109-377, p. 249-50.
Nassau Lawyer
n
June 2015
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17
13 EMAC Art. VI.
14 EMAC Art. VI.
15 EMAC Art. VI.
16 H.R. Rep. No. 109-377, p. 251.
17 42 U.S.C. § 14503 (1997).
18 H.R. Rep. No. 105-101(I)(2)(a)(1), p. 2.
19 42 U.S.C. § 14503(a)(1).
20 42 U.S.C. § 14503(a)(2).
21 42 U.S.C. § 14503(a)(3).
22 42 U.S.C. § 14503(a)(4).
23 42 U.S.C. § 14503(e).
24 See “EMAC Legislation,” Emergency
Management Assistance Compact, (Mar. 19,
2015), available at www.emacweb.org. See also 42
U.S.C. § 14503 (1997); UEVHPA § 11 (2007).
25 UEVHPA § 11 (2007).
26 Lindsey J. Hopper, Striking a Balance: An
Open Courts Analysis of the Uniform Emergency
Volunteer Health Practitioners Act, 92 Minn. L.
Rev. 1924 (2008).
27 UEVHPA, Enactment Status Map, (last visited Mar. 19, 2015), http://www.uniformlaws.
org/Act.aspx?title=Emergency%20Volunteer%20
Health%20Practitioners.
28 UEVHPA § 3.
29 UEVHPA § 5.
30 UEVHPA § 11.
31 UEVHPA § 11.
Taking NCBA Membership To The Courts
On
May
6,
the
Membership Association
Committee went to the
courts to actively promote
the benefits of membership.
Information tables and
membership applications
were available in District
Court, County Court, Family
Court and Supreme Court.
Taking part of the effort
were Committee Co-Chairs
Geoffrey Prime and Marc
Gann, Committee members Joe DeMarco, Carolyn
Wolf, Jackie Carway, Emily
Franchina and Will Sparks,
and NCBA staff Donna
Gerdik, Stephanie Pagano
and Valerie Zurblis.
At Supreme Court, Association Membership Committee
members Will Sparks (l) and Emily Franchina (r) with
Valerie Zurblis, NCBA Director of Communications,
promote the benefits of NCBA membership. (Photo
by Jon Santemma)
18
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Nassau Lawyer
We Care
We Acknowledge, with Thanks,
Contributions to the WE CARE Fund
Donors
In Honor Of
Hon. Carnell T. Foskey the unveiling of the portrait of
Hon. Joanna Seybert
Richard G. Fromewick Hon. Thomas Adams’ receipt of the Annual William
Gitelman Award from the Nassau Lawyers’ Association
Richard G. Fromewick
Raymond Baltch & David Baltch
50th year admission to the Bar
Gassman, Baiamonte, Betts, P.C. Steven J. Eisman’s installation as the
2015-2016 NCBA President
Hon. Sondra Pardes Susan Slavin’s receipt of the Lawrence Solotoff Labor &
Employment Law Recognition
Lois Schlissel
the birth of Max Alexander, grandson
of Hon. Denise Sher
Hon. Denise Sher the unveiling of the portrait of
Hon. Joanna Seybert
Hon. Denise Sher
Hon. Peter B. Skelos’ receipt of the
NCBA President’s Award Hon. Peter B. Skelos
Carol James’ admission to the NYS Bar, daughter of
Hon. Cheryl Chambers and Seymour James
Donors
For Speedy Recovery Of
Hon. Joseph A. DeMaro
Debby Dickstein, daughter of Stephen W. Schlissel
Donors
In Memory Of
Mark A. Annunziata
Salvatore Spano
Karen Bodner Toby Tabat, mother of Gary Tabat
Hon. & Mrs. Angelo Delligatti
Eugene Zito
Hon. Joseph A. DeMaro Alfred Reinharz
Hon. Joseph A. DeMaro
Salvatore Spano
Hon. Joseph A. DeMaro Dora Truzzolino
Hon. & Mrs. Anthony J. Falanga Salvatore Spano
Emily Franchina Irving “Ike” Perlman
Emily Franchina Salvatore Spano
Emily Franchina Dora Truzzolino
Hon. John G. Marks
Jerome Schuster
Hon. Denise Sher
Michael Stefanatos, father of Catherine Rizzo
Hon. Denise Sher Roy W. Vasile
Hon. Peter B. Skelos Sol Goldstein
Hon. Peter B. Skelos Sue Novick, wife of Jeffrey Novick
Hon. Peter B. Skelos
Michael Stefanatos, father of Catherine Rizzo
Ira Slavit
Roy W. Vasile
Michael Solomon
David P. Galison
Michael Solomon Hon. Gino C. Papa
Hon. Arthur Spatt
Alfred Reinharz
In Memory of Lawrence Lally, husband of Hon. Ute Lally
Hon. Ruth C. Balkin
Hon. & Mrs. Stephen
Bucaria
Hon. & Mrs. Anthony J.
Falanga
Marilyn K. Genoa
Hon. John G. Marks
Peter Panaro
Hon. Denise Sher
Checks made payable to Nassau Bar Foundation-WE CARE
Contributions may be made by mail:
NCBA Attn: WE CARE
15th & West Streets
Mineola, NY 11501
Nassau Lawyer
Pro Bono Attorney of the Month
Ashka Patwa
BY MICHAEL HEFFERNAN AND SUSAN BILLER
It is with great pleasure that Nassau/Suffolk Law
Services’ Volunteer Lawyer Project (VLP) and the
Nassau County Bar Association recognize Ashka Patwa
as our most recent Pro Bono Attorney of the Month. This
month’s award honors an attorney who has displayed
incredible passion and dedication for the clients she represents. Ms. Patwa has volunteered for Nassau Suffolk
Law Service’s VLP Landlord/Tenant Attorney of the
Day Project since 2012, providing tenants with much
needed representation which they would not otherwise
be able to afford. Ms. Patwa has devoted over 30 hours
in the past year assisting tenants with their disputes,
helping many remain in their residences who would
otherwise be faced with eviction and rendered homeless.
Ms. Patwa graduated from SUNY Binghamton in
2005, earning her Bachelor of Arts degree in Philosophy,
Politics, and Law, with a minor in History. She earned
her J.D. from Hofstra University School of Law in May
2008, and became a legal intern at Horing Welikson and
Rosen, P.C. She joined the firm as an associate in June
2009 concentrating in Real Estate/Landlord-Tenant
Litigation. Ms. Patwa currently oversees the firm’s
Nassau County Landlord-Tenant practice in the Nassau
County District Court, which resolves residential and
commercial summary proceedings. She is also a part of
the firm’s Administrative Law Department, where she
MENTAL ...
Carolyn Reinach Wolf, Esq. is an Executive
Partner in the law firm of Abrams,
Fensterman, Fensterman, Eisman, Formato,
Ferrara & Wolf, LLP and Director of the
firm’s Mental Health Law practice. Her practice concentrates in mental health litigation
as well as offering individuals and families consultation, advice and related interventions in navigating the mental health
system. She may be reached via e-mail at
cwolf@abramslaw.com.
TELEHEALTH ...
The FSNB is a national non-profit
organization representing all medical
boards within the United States and its
territories that license and discipline
allopathic and osteopathic physicians.12
According to the FSMB, the compact
would create a voluntary systematic
licensing system for physicians seeking
licenses in multiple states. The compact would modernize and streamline
the medical licensure process, facilitate
multi-state practice, enhance telemedicine practices and expand access to
healthcare to underserved areas. In
addition, the compact would ensure and
maintain critical state level regulatory
oversight, accountability, and patients’
protections. This would ease the ability
for physicians to practice telemedicine
across state lines.13
In order for the compact agreement
to be formalized, the Compact must
be signed into law in seven states.
Presently, West Virginia, South Dakota,
Utah, Wyoming, and Idaho enacted the
law. Seventeen other states have formally introduced the legislation into
their legislative chambers. New York
is not one of them. Eleven other state
legislatures are considering it.
Policy Guidance
has succeeded in assisting clients challenge proceedings
before the New York State Division of Housing and
Community Renewal (DCHR).
While Ms. Patwa and her firm represent landlords
in litigation, her work at the VLP is on the opposite
side of the case representing tenants. What she finds
most rewarding about her work at the VLP is getting
the chance to understand both sides of landlord-tenant
disputes. Ms. Patwa’s work at the VLP allows her to see
all perspectives involved in landlord-tenant litigation
and more deeply understand the tenants’ position. The
tenants are indeed grateful for her assistance.
Ms. Patwa encourages more attorneys to provide pro
bono legal services to help those who cannot afford an
attorney. Not only does pro bono service help clients
in dire need of an attorney, but it can also provide the
attorneys with important new perspective on a case.
Best of all are the personal rewards of helping individuals who may not be able to navigate the courts and
advocate effectively for themselves.
“Pro bono service helps you understand the position
that the clients are in and the difficulties they are experiencing and helps you sympathize with the client. Also,
pro bono service may provide you with the opportunity
to represent another side of litigation allowing you to
understand all aspects of the law you work in.”
Jamie A. Rosen, Esq. is an Associate
Attorney at Abrams Fensterman, where she
practices Mental Health, Health Care, and
Elder Law. She received her J.D. from the
Maurice A. Deane School of Law at Hofstra
University, where she was an Associate
Editor of the Hofstra Law Review. She may
be reached via e-mail at jrosen@abramslaw.
com.
n
June 2015
n
19
According to Roberta Scoll, Staff Attorney and
Coordinator of the Attorney of the Day Program: “Ashka
brings a special talent with her when she volunteers
with the Attorney of the Day Project…. She is always
cheerful and her exuberance is contagious. We are so
lucky to have her share her landlord/tenant experience
with us and her passionate representation of our clients
can be seen in the settlements that she obtains.”
In addition to her incredible commitment to pro bono
service with the VLP, Ms. Patwa is a member of the
Nassau County Bar Association and Nassau County
District Court Committee. She is admitted to practice in
the U.S. District Courts of the Eastern District of New
York and Southern District of New York. Ms. Patwa is
also fluent in Gujarati and Hindi.
Ms. Patwa is best known to the Volunteer Lawyer’s
Project for her tremendous work ethic and dedication to
aiding clients with their landlord-tenant disputes. Her
devotion to helping Nassau County residents in need is
indeed admirable; we are very proud to honor Ms. Ashka
Patwa as Pro Bono Attorney of the Month.
The Volunteer Lawyers Project is a joint effort of Nassau/
Suffolk Law Services and the Nassau County Bar
Association, who, for many years, have joined resources
toward the goal of providing free legal assistance to Nassau
County residents who are dealing with economic hardship.
Nassau/Suffolk Law Services is a non profit civil legal services agency, receiving federal, state and local funding to
provide free legal assistance to Long Islanders, primarily in
the areas of benefits advocacy, homelessness prevention
(foreclosure and eviction defense), access to health care,
and services to special populations such as domestic violence victims, disabled, and adult home residents. The provision of free services is prioritized based on financial need
and funding is often inadequate in these areas. Furthermore,
there is no funding for the general provision of matrimonial
or bankruptcy representation, therefore the demand for pro
bono assistance is the greatest in these areas. If you would
like to volunteer, please contact Susan Biller, Esq. 516-2928100, ext. 3136.
1 Michael J. Fitzpatrick, How Shootings
Stigmatize People Living with Mental Illness,
NAMI blog, available at http://blog.nami.
org/2013/09/how-shootings-stigmatize-people-living.html.
2 Eschbach v. Eschbach, 56 N.Y.2d 167, 171
(1982); See also Domestic Relations Law §§ 70,
240(1); Matter of Bennett v. Jeffreys, 40 N.Y.2d
543 (1976); Matter of Gloria S. v. Richard B., 80
A.D.2d 72, 76 (2d Dept. 1981).
3 See Matter of Darlene T., 28 N.Y.2d 391, 395
(1971); Rosenblitt v. Rosenblitt, 107 A.D.2d 292,
293–294 (2d Dept. 1985); see also Matter of
Shepard v. Roll, 278 A.D.2d 755, 756–757 (3d
Dept. 2000).
4 Stern v. Stern, 225 A.D.2d 540, 541 (2d Dept.
1996); See, Vernon Mc. v. Brenda N., 196 A.D.2d
823 (2d Dept. 1993).
5 Health Insurance Portability and
Accountability Act of 1996, Pub. L. No. 104-191
(HR 3103), 110 Stat. 1936 (1996); See, e.g., N.Y.
Mental Hyg. Law § 33.13.
6 Courtney Waits, The Use of Mental Health
Records in Child Custody Proceedings, 17 J. Am.
Acad. Matrim. Law 159 (2001).
7 Jacqueline Rosenblum, Demystifying the
Nassau County Mental Health Court Program,
Nassau Lawyer, at 7 (June 2012).
8 Id.
9 42 U.S.C. § 3601-3619; 42 U.S.C. § 12101.
10 42 U.S.C. § 3601-3619, 3631.
11 42 U.S.C. § 3602(h).
12 See Pub. Health Law § 2981 (2012).
13 Id.
14 Pub. Health Law § 2994–d (2011).
15 Id.
16 See Gen. Oblig. Law § 5-1501B(1)(b) (2009).
17 Id.
18 Gen. Oblig. Law § 5-1501(2)(c) (2009).
19 See EPTL § 7-1.12.
20 EPTL § 7-1.12(a)(4) and (5).
21 Restatement (Third) of Property (Wills & Don.
Trans.) § 8.1(a) (2003).
As the use of telemedicine increases,
so will the legal issues associated with
its proper use. Oversight and scrutiny
by federal and state regulators and
state medical boards will be crucial
to ensuring the quality and safety of
patient care and security of patients’
health care information. Providers,
therefore, will have to be well advised
regarding regulatory compliance, fraud
and abuse, credentialing, privileging,
licensing, and informed consent.
In April of 2014, the FSMB issued
a Model Policy for the Appropriate
Use of Telemedicine Technologies in
the Practice of Medicine. Included in
the model policy are model guidelines
regarding licensure, the establishment
of the Physician-Patient Relationship,
evaluation and treatment of the patient,
informed consent, continuity of care,
referrals for emergency services, medical records, and privacy and security.14
This model policy for use of telemedicine may serve as instructive guidance
for working standards for telemedicine to
state boards where federal and state regulations do not currently exist. The AMA
also issued a report on telemedicine.15
Providers and organizations that
intend to incorporate telemedicine as
part of the delivery of healthcare services must be cognizant of the limitations that presently exist and the
pitfalls to avoid. These include reimbursement allowances, Medicare and
Medicaid state policies, developing
state health law regulations, and public
and private payor contract reimbursement. Providers must be extremely
careful of non-compliant claims which
can be vulnerable to liability for fraud
and abuse charges, anti-kickback violations, and Stark Law violations. Proper
legal advice will be extremely important when organizations are considering
structuring telemedicine arrangements
particularly medical staff by-laws and
credentialing and privileges policies to
distant site practitioners.
Patient privacy, always a top priority, will require not only ensuring the
use of secure communication technology
but will require entity and technology
specific business associate confidentiality and privacy agreements. Shared
information must comply with HIPAA
and HITEC. Federal policy and security
laws now require that all subcontractors, no matter how remote the access
to information may be, must comply
with all of the requirements applicable
to business associates of certain health
plans and health care providers.16
Telehealth contains all the elements
that lawyers either love or hate. It is
evolving and navigating its waters can
be exciting. Or it is the nightmare of
ambiguity, confusion, contradiction and
opposition to change. Either way, telehealth is here to stay.
Patricia Kessler focuses in emerging health
care trends including telehealth and domestic and international medical travel. She
an arbitrator in Nassau County District
Court and a New York State Worker’s
Compensation Employee Claim Resolution
arbitrator. She is a member of the Health
and Hospital Law and Alternate Dispute
Resolution Committees. She is admitted in
New York and Massachusetts. She can be
reached at pakessler10@gmail.com.
1 netrc.org/news/new-york-legislative-update/
http://assembly.state.ny.us/leg/?default_fld=&bn=A02552&term=2015&Summary=Y&Memo=Y.
2 www.americantelmed.org/policy/state-policy-resorce-center.
3 www.telehealthtechnology.org/sites/default/
files/documents/Telehealth%20Definintion%20
Framework%‌20for%20TRCs.pdf.
4 www.omh.ny.gov/omhweb/guidance/telepsychiatry-guidance.pdf.
5 www.jonesday.com/files/upload/AMA%20Policy%20
on%20Telehealth%20(June%202014).PDF.
6 assembly.state.ny.us/leg/?default_fld=&bn=AB2552&term=2015&Text=Y.
7 Id.
8 Id.
9 Id.
10 www.cms.gov/Newsroom/
MediaReleaseDatabase/Fact-sheets/2015-Factsheets-items/2015-03-10.html.
11 www.fiercehealthit.com/story/va-treated-690k-veterans-through-telemedicine-fiscal-year-2014/2014-10-13.
12 www.fsmb.org.
13 www.fsmb.org/Media/Default/PDF/Advocacy/
Interstate%20Medical%20Licensure%20
Compact%20(FINAL).pdf.
14 www.fsmb.org/Media/Default/PDF/FSMB/
Advocacy/FSMB_Telemedicine_Policy.pdf.
15 www.jonesday.com, supra n.5.
16 45 CFR § 160.103.
20
n
June 2015
n
Nassau Lawyer
Committee Reports
EISMAN ...
Matrimonial Law
which the Court permitted the plaintiff
to serve a divorce summons on the
defendant via Facebook. The next committee meeting is scheduled for June
10, 2015.
The CLE program “Religious Marital
Contracts & Divorces,” was presented
by Suffolk County
Supreme Court
Justice John C.
Bivona,
along
with Jacqueline
Harounian,
Leslie Martin and
Alyssa Eisner.
The feature, “A
New Case from
a New Face,”
was presented by
Hilary F. Simon,
Michael J. Langer who discussed the
recent New York
County Supreme
Court case, Baidoo v Blood-Dzraku, in
Condemnation Law
& Tax Certiorari
U COU
Founded
1899
R
IO
BA
AS
N
Y
NA
SA
NT
S
Meeting Date: 5/13/15
Chair: John DiMascio, Jr.
SOCIA
T
when arguing a case in court. He will
continue to advance the quality of service of the Association to NCBA members, the legal profession and to the
community.
Professional Achievements
Meeting Date 5/28/15
Chair: John Terrana
Discussion was presided over by
the Chair regarding various issues
of interest, including the finalization
of the 2016/17 ratio, the effect of the
Disputed Assessment Fund (DAF) on
the effective tax rate for 2016/17, the
countywide re-assessment, NIFA’s
approved additional borrowing of $60
million for tax refunds and the new
procedures for handling SCAR proceedings. The next committee meeting
is scheduled for June 25, 2015.
Steve is an active member of various professional, civic and political
organizations. He is a Fellow of the
American Academy of Matrimonial
Lawyers, Delegate-at-Large to the
Executive Board of the New York
State Bar Association Family Law
Committee, and member of the
NYSBA Matrimonial Committee
and New York Family Law Inn of
Court. He previously served for 8
years as a member of the Attorney
Grievance Committee for the Tenth
Judicial District (Nassau and Suffolk
Counties) and was recently appointed
by the Chief Administrative Judge
NCBA Domus Open
Monday, June 22, 2015
Eisenhower “The Red”
GOLF
Golf - $195 pp
INCLUDES:
driving range, green fees, gift, open bar & BBQ
“PLUS”
Hot Dog, Soft Drink & Bag of Chips
@ 9th Hole Snack Bar
SCHEDULE
12:00 p.m. - Registration
1:00 p.m. - Shotgun Start
5:30 p.m. - Open Bar & BBQ
(at the Carltun)
Open Bar & BBQ only - $75
Daniel W. Russo, Chair
Robert F. Schalk, Vice Chair
For more information contact Perri 516-747-4070 x226
Guests agree to at all times indemnify and hold the Nassau County Bar Association and its officers and employees harmless and free and
clear of any and all liability arising from any act of negligence or omission by guests with respect to the Domus Open.
2015 Domus Open • Return to: NCBA, Domus Open, 15th & West Sts., Mineola, NY 11501
Checks payable to NCBA
Name_________________________________________
GOLF — $195 pp
Please make reservations for:
Email____________________ Phone _______________
(list names below)
qAMEX qVISA qMC
Threesome
CC #____________________________________________
Name on Card____________________________________
Single
Twosome
Foursome
(“Special Price” $700)
Billing Address_________________________Zip________
Sec. Code________ Exp. Date____/___
OPEN BAR & BBQ ONLY — $75 pp
During his term of office,
Eisman’s focus will be
on sustaining the bar
association for the next
generation, concentrating
on the physical
headquarters building
in Mineola as well as the
organization’s financial
security.
of the State of New York as one of
only four Long Island attorneys to
serve as a member of the statewide
“Matrimonial Practice Advisory and
Rules Committee.”
His reputation has garnered
him numerous prestigious awards,
including a pre-eminent AV rating
by Martindale Hubbell, and selection as one of the Top Ten Leaders
in Matrimonial and Divorce Law
by Digital Press. Eisman has been
designated as a New York Super
Lawyer every year since 2008 and he
has also been selected by his peers
for inclusion in The Best Lawyers
in America® since 2012.
Long
Island Business News selected him
as a recipient of its Leadership in
Law awards in 2012 and in 2014,
Long Island Pulse Magazine named
him the Top Legal Eagle in the
areas of Divorce, Child, Family &
Matrimonial Law.
Community Service
Steve Eisman has often been
honored and recognized by various
community leaders for his dedication to many charitable, civic and
other not-for-profit organizations. He
is a recipient of the Nassau County
Republican Committee’s Theodore
Roosevelt Award for outstanding business community leadership and was
the second recipient of the prestigious Rick Keidel Memorial Tribute
Award from the NCBA Matrimonial
Law Committee.
He is also a recipient of
the Education and Assistance
Corporation’s Distinguished Service
and Achievement Award, Court
Officers Benevolent Association of
Nassau County’s Jurisperitas Award,
Diabetes Research Institute Man
of the Year Award, East Meadow
Chamber of Commerce Man of the
Year Award and is the first recipient
of the New York District Kiwanis Past
Governor’s Council Distinguished
Service Award. He has been recognized as a golf outing honoree by
the We Care Fund, the St. John’s
University School of Law Alumni
Association and the Education and
Assistance Corporation.
He is a Past President of the
Nassau County Jewish Lawyers’
Association, Past Chair of the Board
of the Education and Assistance
Corporation and Past President of the
Nassau Chapter of the St. John’s Law
School Alumni Association.
Eisman resides in East Hills with
his wife, Kathy and daughter, Jamie,
a Junior at Northwestern University.
His son Scott is an associate attorney with Freshfields Bruckhaus
Deringer in Manhattan, his daughter,
Alexandra is an Assistant District
Attorney in Nassau County, and
another daughter Amanda, is a student at New York Law School.
Nassau Lawyer
n
June 2015
2015 NYS Mock Trial Tournament
n
21
Stella K. Abraham
HS For Girls Wins
Nassau Title
Case closed. The student team from
Stella K. Abraham High School For
Girls, Hewlett, out-argued 48 schools
in the courtroom to win this year’s
Nassau County Championship in the
2015 New York State Mock Trial
Tournament.
At the Mock Trial Awards
Reception on May 5th, volunteer
attorneys and judges, students, parents and educators congratulated the
winning team and runner-up finalist
Mesivta Ateres Yaakov, Lawrence, as
they received the Marcus G. Christ
Championship Trophy and the Mock
Trial Tournament Finalist Plaque,
respectively. The schools were enthusiastic in their expression of gratitude
to NCBA and everyone involved in
the Tournament for the mock trial
program.
Coordinated each year by the
Nassau County Bar Association,
the Mock Trial competition offers
high school teams the opportunity
to argue a case before judges in
courtrooms of the Supreme Court
in Mineola. The Nassau competition
has the highest student participation
in the state. This year, 122 attorneys
and judges volunteered to coach
teams and preside at trials, and
more than 500 students from 48 high
schools competed in seven rounds,
consisting of 77 individual trials.
Mock Trial Co-Chairs
Hon. John G. Marks
Michael Markowitz
Hon. Marilyn Genoa
Tournament Coordinator
Caryle Katz
TEAM ATTORNEY-ADVISORS
Joanne Stevens Bair
Liora Ben-Sorek
Brynde Berkowitz
Elliot Blumenthal
David Bythewood
James Connors
Alfred Constants III
Karen Corbett
The 2015 Mock Trial Tournament Nassau Championship team Stella K. Abraham High School for Girls, shows off the traditional
Marcus G. Christ Championship Trophy presented by the Nassau County Bar Association on May 5. With the students are (standing left) NCBA Mock Trial Co-Chair Hon. John Marks, NCBA Community Relations Coordinator Caryle Katz; and, (standing right)
Co-Chairs Hon. Marilyn Genoa and Michael Markowitz. The volunteer attorneys who coached the students are seated in the middle,
Saritte Wolkenstein and Brynde Berkowitz. (Photo by Hector Herrera)
Joseph DeFelice
Brandon Draper
Lisa Fallah
Pablo Fernandez
Kenneth Fink
Neil Finkston
Richard Fuhrman
Dominic Gallardo
Mark Goidell
Lisa Golden
Anthony Heller
Kristina Heuser
Richard Hochhauser
M. Allan Hyman
David Kirschner
Michele Levin
Mili Makhijani
Evan Mandery
Melanie Marmer
Joseph Mattone
James McGlynn
Christine McInerny
Hon. Thomas McKevitt
Kelly McMahon
Christine Mertz
Meir Moza
Jeanne Mulry
Mark Panzavecchia
Colin Rathje
Michael Roberts
Jared Rosen
Janna Rossetti
David Schwartz
Michael Scotto
Karl Seman
Ira Slavit
Richard Van de Stouwe
Robert Vella
Cynthia Webb
James Wick
Saritte Wolkenstein
Elan Wurtzel
Steve Zissou
PRESIDING TRIAL JUDGES
Presiding Judge, Final Round
Hon. Peter B. Skelos
Robert Ansell
Hon. Leonard Austin
Hon. Ruth Balkin
Hon. Gale D. Berg
James Black II
Marjorie Bornes
Anne Azzu Brown
Andrew Campanelli
Michael Cardello
Hon. Lance Clarke
Hon. Terry Corrigan
Adam D’Antonio
Donnalynn Darling
Brian Davis
Christopher Dellicarpini
Hon. Andrew M. Engel
Jaime Ezratty
Hon. Scott Fairgrieve
Marc Gann
Hon. Kenneth Gartner
Hon. C. William Gaylor III
Joseph Gentile
Jeffrey Gerson
Barbara Gervase
Dorian Glover
Douglas Good
Hon. Ellen Greenberg
Hon. Patricia Harrington
Hon. Fred Hirsh
Alan Hodish
Hon. Steven Jaeger
Elizabeth Kase
Hon. John Kase
Hon. Richard Kestenbaum
David Kluepfel
Hon. Susan Kluewer
Michael Kohler
William Laino
Sheryl Lerner
Hon. Steven Leventhal
Jack Libert
Gregory Lisi
Joseph Lorintz
Mary Lucere
Andrew Luskin
Alan Marder
Christopher McGrath
Kevin McMorrow
Paul Millus
Stacey Ramis Nigro
Hon. William O’Brien
Jordan Palatiello
Hon. Anthony Paradiso
David Pollack
Linda Prizer
Samuel Rieff
Gregg Roth
Hon. Larry Schaffer
Hon. Denise Sher
William Spark
Hon. Elaine Jackson Stack
Ted Tanenbaum
Hon. Ira B. Warshawsky
Hon. Joy Watson
Hon. Claire Weinberg
Kathleen Wright
Omid Zareh
Hon. Robert Zausmer
SPONSORS
Gold Sponsor
Certilman Balin Adler & Hyman
LLP
Silver Sponsors
Brynde Berkowitz, Esq.
Collins McDonald & Gann, P.C.
Joseph A. Gentile, Esq
Kaminetzky & Associates, P.C.
Kestenbaum & Mark
Klee & Woolf, LLP
Levine & Slavit, PLLC
Meyer Suozzi English & Klein, P.C.
Nassau Attorneys’ Service
Rivkin Radler, LLP
William A. Sparks, Esq.
Hon. Claire Weinberg
ASSOCIATION NEWS
YASHAR, Attorneys and Judges Chapter of Hadassah,
honored the Hon. Lea Ruskin (left). Presenting the award
was YASHAR President, Jacqueline Harounian. (Photo
by Hector Herrera)
The Cancer Center for Kids at Winthrop-University
Hospital honored Donna-Marie Korth at its Ninth Annual
Black and White Ball at Oheka Castle on April 30th.
With Ms. Korth is Dr. Mark Weinblatt, Chief, Pediatric
Hematology & Oncology Director at Winthrop Hospital.
The Honorable Thomas A. Adams, Administrative Judge
of Nassau County, was recently honored by the Nassau
Lawyers’ Association of Long Island and presented with
the prestigious William J. Gitelman Award. The award is
presented each year to an outstanding Judge or Attorney.
(l-r) Hon. Anthony Falanga, outgoing President of the
Nassau Lawyers’ Association; Hon. Thomas A. Adams;
Hon. Gregory P. Peterson, incoming NLA President.
(Photo by Hector Herrera)
22
n
June 2015
n
Nassau Lawyer
Inspiring Respect for the Law
A Team Strategy for
Successful Law Firms
NCBA Speakers Bureau
Each year, the Nassau County Bar
Association’s Speakers Bureau receives
dozens of requests from the community
for attorneys to speak about the law.
The following members generously volunteered their time during this past
year to fill these requests, going out
to speak on a variety of legal issues to
diverse audiences: high school classes, libraries, senior centers, business
associations, community organizations
Speakers Bureau
Like many ventures, the success of today’s law firm depends largely upon results-oriented
management acting on sound and timely business advice. Successful, growth-oriented law
firms don’t just “happen.” The professionals at Israeloff, Trattner & Co. know how to ask the
right questions, while providing creativity and energy in helping you deal with the issues
that confront your industry, the economy and their impact on your business. Isn’t it time
you made Israeloff, Trattner & Co, part of your team?
ACCOUNTING & FINANCIAL MANAGEMENT
FIRM GOVERNANCE/STRATEGIC PL ANNING/PROFIT IMPROVEMENT
FORENSIC ACCOUNTING/EXPERT TESTIMONY
SYSTEMS DESIGN & IMPLEMENTATION
BUSINESS, PROFESSIONAL PRACTICE & LICENSE VALUATIONS
T E C H N O L O G Y, M A R K E T I N G & H U M A N R E S O U R C E C O N S U L T I N G
CONTINUING LEGAL EDUCATION
N E W YO R K CIT Y
GA R D EN CIT Y
212.239.33OO 516.24O.33OO
Visit us on the web at www.israeloff.com
IT11_LIBN_LawFirmHuddle_v1.indd 1
11/10/11 5:40 PM
Beth Polner Abrahams
Neil Ackerman
Michael Adges
Robert Ansell
Gale D. Berg
Wahida Bhuyan
James Black II
Howard Brill
Andrea Brodie
Lynn Brown
Sandra Busell
Christine Cione
David H. Cohen
Hon. Joseph Covello
Frank D’Angelo
Adam D’Antonio
Gina DeLustro
Maureen DiTata
Shelly Eaton
Brendan Fitzpatrick
Marc Gann
Annilus Gilot
Hon. David Goodsell
Sharon Kovacs Gruer
Saundra Gumerove
Bruce Hafner
Adrienne Hausch
Alan Hodish
Shaun Hogan
Mickhaila Jasmin
Det. Lt. Gustave Kalin
and community fairs. In addition,
many served as panelists in several of
the NCBA public education seminars
offered at Domus. We thank them all
for helping the Nassau County Bar
Association educate Nassau residents
about the law, joining our effort to
fulfill our mission of serving the public
as well as the profession. If you would
like more information or to participate
in the NCBA Speakers Bureau, please
contact Caryle Katz at ckatz@nassaubar.org or call (516)747-4070 x211.
Matthew Kaplan
Lawrence Katz
Patricia Kessler
Richard Klar
James Klein
Barbara Kopman
S. Robert Kroll
Joseph LaFace
Charles Lapp III
David Levine
Peter Levy
David Lira
Karen Mancusoi
A.D.A. Maureen McCormick
Susan McLaughlin
Maureen McLoughlin
Oscar Michelen
Joseph Milizio
A.D.A. April Montgomery
Corey Morris
Melissa Negrin-Weiner
Hon. William O’Brien
Hon. Colin O’Donnell
A.D.A. Diane Peress
Susan Katz Richman
Samuel Rieff
Joan Robert
Mindy Roman
Ross Schiller
Steven Schrader
Michael Scotto
Wanda Selinger
Det. Lt. Gary Shapiro
DIVORCE ...
Monied Spouse Pays Less Monied
Spouse’s Premiums
In most divorce agreements, child
support, spousal support (the new term
for alimony), asset payments, payments for vehicles and other expenses
of daily living are almost a certainty.
Utilizing mediation, parties can also
agree that one part of the negotiation
may be that one party pays the other
party’s health insurance premiums for
a certain period of time.
By utilizing divorce mediation as
opposed to the garden-variety default
rules, parties are free to negotiate
their agreement’s tax ramifications,
particulars as to what will be deemed
“child support” or “asset payments,”
which are not generally taxable
events.2 Additionally, parties are also
free to determine what amounts are
to be deemed “spousal support” which
are taxable.3
Allocate Health Insurance
as A Marital Asset
By utilizing mediation, the parties can allocate funding for health
insurance, which can be tailored to
fit the parties’ lives subsequent to the
divorce. For example, a husband may
waive twenty five thousand dollars,
representing his interest of the equity
in the marital home, as a way of providing several years of post-divorce
health insurance to the wife.
Another way of working out an
Jason Starr
Rita Stein
Harriette Steinberg
Charlene Thompson
A.D.A. Warren Thurer
Irene Villacci
Thomas Weiss
Community Relations
and Public Education
Seminar Presenters
Beth Polner Abrahams
Patricia Craig
Elizabeth Pollina
Anne Donnelly
Ellen Cowie
Jacob Feldman
Richard Fuhrman
Marilyn Genoa
Rena Gulati
Saundra Gumerove
Heather Harrison
Deborah Kaminetzky
Michael Levy
Andrew Lieb
Michael Markowitz
Charles McEvily
Patrick Michael McKenna
Sheryl-Anne Sastow
Michael Schoenberg
Ira Slavit
Harriette Steinberg
Andrew Thaler
acceptable agreement for health
insurance costs may include altering
the generally accepted one half split
of joint bank accounts, retirement
accounts, automobiles, debts or any
other assets or liabilities which the
parties may have an interest in.
A successful mediator, seeing the
dispute as a whole, will undoubtedly recognize the importance of
health insurance in negotiation of the
divorce. This issue can be resolved by
alternative methods, resulting in a
final agreement that both parties can
live with subsequent to their divorce.
These agreements will undoubtedly
have a positive effect on the parties
and their children, as well as on the
reputation of lawyers in the field, who
are often seen as an expensive way
out of an already difficult and trying
situation.
Cory Rosenbaum, Esq. practices Divorce
Mediation and Law at Modern Divorce Law,
with offices in Long Beach, Uniondale and
New York City. Cory spent the majority
of the last twenty years serving as Trial
Counsel to small firms and solo practitioners in personal injury and medical malpractice cases. Since self-mediating his own
divorce from his ex-wife and ex-law-partner,
he began mediating divorces for others and
also litigating matrimonial actions when
parties refuse to fairly settle their divorce.
1 Both parties are on notice “that once the judgment is signed, a party thereto may or may not
be eligible to be covered under the other party’s
health insurance plan, depending on the terms of
the plan.” Dom. Rel. Law § 255.
2 Child support payments are not deductible
against a payor’s income, K.J. v. M.J., 14 Misc. 3d
1235(A) (Sup. Ct., Westchester Co. 2007).
3 If maintenance were awarded to a plaintiff, it
would be taxable income to her and tax-deductible
to defendant. Campinell v. Campinell, 220 A.D.2d
940, 940-41 (3d Dept. 1995).
Nassau Lawyer
n
June 2015
n
23
MATRIMONIAL INTERN
AVAILABLE
I am pleased to introduce
John Komondorea
a summa cum laude Molloy graduate, who would like to work as an
intern for up to a year and without compensation.
I know him well and to be very intelligent and hardworking.
Resume upon request.
Respond by e-mail at jkomon1@msn.com.
For Sale
OFFICE SPACE
GARDEN CITY
No Fee.
Franklin Avenue. 1 or 2
rooms available in CPA, Law
Suite, room for secretary.
Sunny, affordable convenient.
Call Jerry -516-946-0652
ADVERTISE
Call
631-737-1700
Formerly Attorney’s Office.
Free Standing Brick
Building. Merrick Road.
Hi-Visibility. 1280 Sq Ft.
Office Space . 3 Large
Rooms, (Conference
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Reception Room). Skylites,
Plus 2 Bathrooms, Yearly
Tax $7766.00.
Please call Laura
Palermo
(516) 650-3365
24
n
June 2015
n
Nassau Lawyer
Serving the corporate and private communities.
Our services now include Forensic Accounting. Frank Shea, Karen Stincone, and the staff at Alpha
Group are pleased to welcome a new addition... Greg Hagarty has joined Alpha Group after 25
years with the FBI. Mr. Hagarty is a Certified Public Accountant in the State of New York and has
a Master’s Degree in Taxation. Mr. Hagarty specialized in white collar criminal investigations. He
was one of the hands-on managers of the successful investigation into the massive fraud committed
by the employees at Bernard L. Madoff Securities. He has investigated a $30 million multidefendant mortgage fraud investigation; a complex $60 million Ponzi scheme involving shell
companies; a conspiracy to defraud the government in a bidding scheme involving more than $100
million; and bankruptcy frauds, among other investigations. Greg Hagarty has testified extensively
in Federal Court, and as the FBI’s expert
witness. He has attended extensive training
given by the SEC, FBI, and DOJ. Greg
Hagarty is certified in Financial Forensics by
the American Institute of Certified Public
Accountants.
Greg Hagarty, CPA, CFF
All of our investigations are conducted with complete discretion and confidentiality. We are
bonded and insured. Alpha Group is licensed by NYS Dept. of State and FL Dept. of Agriculture
and Consumer Services. For more information visit us at www.alphagp.com
OFFICE LOCATIONS
100 Broadhollow Rd. Ste. 200
Farmingdale, New York 11735
Phone 631.454.1100
Lic# 11000065107
21 Main Street
Hackensack, New Jersey 07601
Phone 877.346.2800
Lic# 9115
4400 N. Federal Hwy., Ste. 210
Boca Raton, Florida 33431
Phone 561.391.6057
Lic# A2600213

Nassau Lawyer - Nassau County Bar Association

Transcription

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